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Legal  Formulary, 


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A  Collection  of   Forms  to  be   Used   in  the   Exer- 
cise of  Voluntary  and  Contentious 
Jurisdiction. 


To    which    IS    added  an    Epitome    of  the    Laws.    De 
cisions  and  Instructions  pertaining  thereto. 

in    THE 

Rev.  Peter  a.    Baart,  A.   M.,  S-  T,  L. 


Irremovable  Rector  of  St.  Mary's  Church.  Marshall.  Midi. 

Formerly  Fiscal  Procurator  of  Detroit  Diocese. 

Author  of  "'The  Konian   Cotirt."     ■'Orphans  and   Orphan  As\  hmi'-.""  >Vi 


THIRD     EDITION. 


FR..PUSTET,  .,    ,  .  . 
Printer  to  the  Holv  See  aiifl  tlie'^.'ton'Eri^atioti  of  Rites. 


Kk.     PUSIET    .V    CO.. 

NEW    YORK. 


Nihil  Obstat, 

Carolus  O'Reilly,  S.  T.  D, 

Censor  Deputatus. 

Imprimatur, 

Joannes  S.  Foley, 

Episcopus  Detroitensis. 

Die  3,  m.  Februarii,  1890. 


LOAN  STACK 


Copyrighted,  1S9S, 

EY 
p.  A.  BAART. 

ALL   RIGHTS   RESERVE1>. 


I'KEss  OF  The  Statesman. 

MARSHALL.    MICH. 


Ex 


n 


QQC^ 


18 


LETTER  OF  APPROVAL. 


From  His  Holiness,  Pope  Leo  XIII. 

" The  Holy  Father  has  accepted  ' Le^al  Formu- 
lary^ especially  in  the  direction  of  making  canon  lavj 
more  knovjyi  in  your  country^  and  that  the  ecclesias- 
tical affairs  may  be  ahvays  better  reg'ulated  accord- 
ing" to  ity 


FR.  CARDINAL  SATOLLI. 


Nov.  J,  i8g8. 


[        580 


EXTRACTS  FROM  LETTERS  OF  CARDINALS. 


His  Eminence^  M.  Cardinal  Ledochowski,  Prefect  of  the  Propaganda, 
writes  on  October  7,  1898: 

• ...  .1  predict  that  this  collection  of  forms  will  prove  useful  for 
the  diocesan  curiae  of  your  country " 

His  Eminence,  M.  Cardinal  Rampolla,  Secretary  of  State,  writes  on 
Oct.  3,  1898: 

•■....  With  satisfaction  1  recognize  that  in  writing  'Legal  Formu- 
lai-y'  you  have  performed  a  very  useful  work,  especially  for  your 
own  country.  Hence  I  thank  you  much  for  the  copy  so  courte- 
ously sent  me,  and,  taking  advantage  of  this  occasion,  from  my 
heart  I  profess  the  sentiments  of  my  particular  esteem  for  you." 

His  Eminence,  C.  Cardinal  Mazzella,  on  Oct.  29,  1898,  writes: 

• . . . .  Having  the  endorsement  which  it  has  I  make  no  doubt 
tliat  -Legal  Formulary'  will  supply  a  want  long  felt  in  the  United 
Sta;tes,  and  prove  a  valuable  handbook  for  the  use  of  ecclesias- 
t  it;s  who  are  too  busily  engaged  in  the  duties  of  the  ministry  to 
make  a  long  search  through  extensive  volumes  for  a  necessary 
formula. . . . "' 

0 

His  Eminence,  J.  Cardinal  Gibbons,  A ich bishop  of  Baltimore,  writes 
on  Nov.  2.  1898: 

•■My  Dear  Dr.  Baart:--!  beg  leave  to  thank  yow  for  your  new 
work,  'Legal  Formulary,'  which  you  were  kind  enough  to  send 
me.  Your  patient  industry  and  studious  habits,  as  well  as  your 
ability,  lead  me  to  hope  that  I  will  peruse  with  profit  this  last 
work  from  your  pen ....     Faithfully  yours  in  Xst, 

J.  Card.  Gibbons."" 


CONTENTS. 

Part  First   -Forms  foi-  Diocesan  Appointments. 

Pa?.'. 

( 'hapter  I.     The  Nomination  of  Bishops 1 

Chapter  II. — Ajipointmeut  of  Vicar  General 11 

Chapter  III.   -Aj)XJointment  of  Vicar  or  Administrator 29 

Chapter  IV. — Appointment  of  Canons  and  Consultors 37 

Chapter  V. — Appointment  nf  Rural  Deans  and  Bishop's  Chan- 
cellor    .J  1 

Chapter  VI.     Apijointment  of  Notary,  Secretary,  and  Econome 

of  Bishop 58 

Chapter   VII.   -Appointment  of   Fiscal    Procurator.    Defender 
of  Marriay:e  Bond,  Auditors  of  Accounts T.I 

P.vitT  Skcon I).     Parishes,  Precedence,   Sacred   Thinij:s,    Faculties, 

Index  Rules.  Kdicts,  Property. 

(^hapter  I.-   Parish  Priests,  Synodal  Examiners  and  Concursus.  8U 

C/hapter  II. — Parishes,  Changes  in  Them,  Pensions 113 

Chapter  III. — Order  of  Precedence  for  Clergy  in  the  U.  S 13;3 

Chapter  IV. — The  Sacraments:  Baptism.  Contirmation.   Holy 

Eucharist 143 

Chapter  V.— The  Sacrament  of  Penance lti(-> 

Chapter  VI. — Sacrament  of  Holy  Orders 187 

Chapter  VII.— Sacrament  of  Matrimony -07 

(^hapter  VIII. — Facultates   QuiB  Episcopis   Statuum   Poedera- 

torum  Concedi  Solent 234 

Chapter  IX.   -Apostolic  Constitution  of  Pope  Leo  XIII  on  the 

Prohibition  and  Censure  of  Books 243 

Chapter   X.— Various    Edicts;    Visitation.    Synod.     Seminary. 


VI  CONTENTS. 

Foiiiidatiou  of  Convents.  Collecting  Alms 201 

Chapter  XI.     The  Alienation  of  Church  Property ^Hf) 

Part  Third.    Trials  and  Punishments. 

Chapter  T.  —Preliminary  Investigation.   Forms  for   Monitions. 

Precept.  Judge.  Auditor "298 

Chapter  II.  -Forms  foi-  Summary  Investigation  before  Pre- 
ventive  Remedies 311 

Chapter  III. — Forms  for  Criminal  Libel lus.  and   for  Recording 

the  Acts 315 

C^'hapter  IV. — Forms  for  Visiting  Corpus  Delicti:  for  Introduc 

ing  Documents 319 

Chapter  V. — Forms  for  Citation  of  Witnesses 322 

Chapter  VI. — Forms  for  Remissorial  Letters 331 

(chapter  VII.    Forms  for  Examining  Witnesses 33;") 

Chapter  VIII. — Forms  for  Citing  the  Accused 315 

Chapter  IX. — Contumacy  of  the  Accused 351 

Chapter  X. — Challenge  of  Judge:     Arbiters 35() 

Chapter  XI. — Hearing  Given  the  Accused 363 

Chapter  XIL— Defense  of  the  Accused 372 

Chapter  XIII. — Forms  for  Definitive  Sentence 385 

Chapter  XIV.--Process  ex  Notorio 392 

Chapter  XV.— Forms  for  Appeals 396 

Chapter  XVI.— The  Acts  Before  Judge  of  Appeal 101 

Chapter  XVIL— Civil  Process  in  Church  Courts 410 

Chapter  XVIII.— Forms  for  Summary  Civil  Process .421 

Chapter  XIX.— Rules  for  Punishments 427 

Chapter  XX.— Forms  for  Censured 435 

Chapter  XXI.— Appeal  and  Release  from  Censures 447 

Chapter  XXII.— Vindicatory  Punishments:  Fines,  Imprison- 
ment, Banishment,  Transfer,  Dismissal,  Loss  of  Title,  De- 
position, Disqualification 460 

Chapter  XXIII.—Excommunications,  Suspensions.  Interdicts 

Lat£e  Sententia3 477 

Chapter  XXIV.— Cum  Magnopere,  Prescription 486 

General  Index 495 


INTRODUCTION. 

Acting  on  the  sug-^restion  of  several  bishops  the 
author  has  compiled  this  book  of  forms.  The  absence 
of  such  a  work  has  been  felt  by  many  who  are 
eng-aofed  in  official  diocesan  affairs  and  by  pastors 
whose  time  is  too  limited  to  permit  a  long-  search 
through  extensive  volumes  when  they  need  a  neces- 
sary formula.  By  using  a  correct  form  in  official 
documents  much  inconvenience  and  at  times  the  dan- 
ger even  of  nullity  are  precluded.  In  contentious 
matters  great  trouble  is  avoided  by  each  of  the  in- 
terested parties  knowing  exactly  what  the  other 
claims.  Moreover,  it  is  an  undeniable  fact  that  the 
forms  hitherto  used  in  some  of  our  American  ecclesi- 
astical courts  have  with  difficulty  been  sustained  as 
canonical.  While  the  law  does  not  require  any  set 
form  for  documents,  still  it  demands  that  certain 
necessary  things  be  not  omitted. 

The  forms  given  in  the  following  pages  are  based 
on  suggestions  from  Monacelli  and  Reiffenstuel. 
founded  on  the  g'eneral  laws  of  the  church  and  espec- 
ially adapted  to  the  exceptional  conditions  of  the 
United  States.  It  is  hoped  that  using  thesei'orms  as 
a  basis,  with  the  help  of  the  explanations  given 
therewith,  the  reader  wnll  be  able  to  construct  read- 
ilv  whatever  document  his  circumstances  mav 
demand. 


Vlli  INTRODUCTION. 

The  Formulary  is  confined  to  diocesan  affairs; 
to  bishops  and  priests  and  to  their  official  rela- 
tions. English  being"  the  lang^uage  of  our  diocesan 
courts  as  well  as  of  the  Apostolic  Deleg"ation  in 
Washing"ton,  this  Formular}^  is  printed  in  English, 
except  where  prudence  requires  the  use  of  Latin. 
The  object  of  this  work  is  not  to  give  extensive 
treatises  on  the  various  subjects  mentioned,  but 
rather  to  offer  an  epitome  of  the  law  on  necessary 
points  and  to  provide  safe  forms. 

Whatever  appears  in  the  following  pages  is  cheer- 
fully submitted  to  the  judgment  and  correction  of 
proper  ecclesiastical  authority. 

Peter  A.  Baart. 
Marshall,  Mich.,  August  15,  1898. 


Note  to  the  Third  Edition. 

The  favorable  reception  of  "Legal  Formulary" 
has  made  a  third  edition  necessary  within  six  months 
of  the  first  issue. 

The  Holy  Father  himself  has  deigned  to  accept 
the  work  and  express  the  desire  that  through  it 
canon  law  may  become  better  known  in  the  United 
States  and  that  ecclesiastical  affairs  ma}^  be  always 
better  regulated  according  to  it.      \   . 

A  few  additions  have  been  made  to  the  text  but  . 
the  paging  and   paragraphing  are  the  same,  so  that  " ' 
in  quoting  no  confusion  will  ensue. 

J;in.  25,   1S<M). 


PART  FIRST, 


Forms  for  Diocesan  Appointments. 


CHAPTER  I. 

THE    NOMINATION   OF    BISHOPS. 

1.  Authorit}"  in  the  Catholic  Church  comes  from 
above.  Hence  the  appointment  of  bishops  to  vacant 
sees  depends  directly  or  indirectly  on  the  Sovereign 
Pontiff.  In  those  countries  over  which  the  Sacred 
Cong-reg'ation  of  the  Propag^anda  has  jurisdiction, 
where  the  ecclesiastical  hierarchy  has  been  estab- 
lished, the  archbishop  and  the  bishops  of  the  pro- 
vince in,  which  the  vacant  see  exists,  propose  to  the 
Sacred  Cong'reg'ation  the  names  of  three  persons 
whom  they  deem  fit  for  bishop  to  fill  the  vacancy. 
From  the  persons  thus  sugfg-ested,  after  hearing-  the 
deliberations  of  the  Propag-anda,  the  Sovereig*n  Pon- 
tiff selects  the  bishop.  However,  this  rig^ht  of  rec- 
ommending* must  be  understood  to  impose  no  oblig^a- 
tion  on  the  Pope  of  selecting-  one  of  the  three  sug-- 
g-ested  b}'   the  bishops.     Not  unfrequently  does  His 


2  LEGAL   FORMULARY. 

Holiness   appoint  some  other   person,    especially    if 
there  be  contention. 

2-  This  recommendation  made  by  the  bishops,  in 
some  countries  is  made  by  them  alone,  in  others  with 
the  participation  of  the  clerg'y. 

In  the  United  States  the  consultors  and  the  irre- 
movable  rectors  of  a  vacant  diocese  suo"<2rest  to  the 
bishops  of  the  province  the  names  of  three  persons 
whom  they  deem  fit  for  filling-  the  vacancy.  The 
archbishop  convokes  the  meeting",  usually  within 
thirty  days  from  the  date  of  vacancy,  and  himself 
presides  at  the  session;  or,  if  he  is  impeded,  then 
some  suffragan  bishop  of  the  province  desigfnated  by 
him.  In  case  of  vacancy  in  the  archiepiscopal  see, 
the  suffrag-an  bishop  who  is  senior  in  consecration 
presides  or  designates  another  suffragan  to  preside. 

3.  The  administrator  of  the  vacant  diocese  has  no 
rig-ht  of  his  own  authority  to  call  this  meeting-; 
neither  has  he  any  right  to  be  present  at  it  unless  he 
be  a  consultor  or  irremovable  rector.  Much  less  can 
the  vicar  general,  the  chancellor  or, the  secretary  of 
the  deceased  bishop  attend  the  meeting*.  In  fact 
their  term  of  office  expires  with  the  coming-  of  the 
vacancy.  The  archbishop  or  the  bishop  who  presides, 
appoints  one  of  the  consultors  or  rectors  to  act  as 
secretar}^  of  the  meeting;  but  no  extraneous  person 
may  be  introduced. 

4.  Before  the  consultors  and  rectors  proceed  to 
vote  for  candidates,  they  are  oblig-ed  to  make  an  oath 
that  they  in  voting  will  be  guided  neither  by  friend- 
ship nor  by  favor.  The  ballot  shall  be  a  secret  one 
and  the  law  distinctly  says  it  shall  be  considered  only 
aconsultive  not  an  elective  vote.     A  person  who  is. 


THE    NOMINATION    OF    BISHOPS.  3 

both  a  consultor  and  rector  nevertheless  is  entitled 
to  but  one  vote.  Each  of  the  three  places — most 
worthy,  more  worthy,  worthy — is  to  be  filled  sepa- 
rately, so  that  each  voter  may  write  only  one  name 
at  a  time  on  his  ballot.  A  majority  of  all  the  votes 
cast,  includino-  blank  ballots,  is  required  for  the  nom- 
ination to  first  place;  then  ag^ain,  a  majority  of  all 
the  votes  cast  is  required  for  a  nomination  to  the  sec- 
ond place.  Likewise  for  the  third.  It  is  not  neces- 
sary, thouofh  in  cases  it  may  be  very  advisable,  that 
a  complete  record  of  all  the  votes  cast  be  included  in 
the  minutes  of  the  meeting*,  so  that  all  the  names  and 
the  circumstances  may  thus  be  broug-ht  to  the  notice 
of  the  bishops. 

5.  The  bishop  who  presides  will  then  send  a  copy 
of  the  minutes,  countersigned  by  the  secretary  of  the 
meeting",  to  the  other  bishops  of  the  province  and  to 
the  Sacred  Cong-reg^ation  of  the  Propag^anda.  Hence 
these  minutes  should  be  written  in  Latin.  Then 
the  bishops  will  meet  at  a  time  appointed  and  discuss 
the  names  presented  to  them  by  the  minutes  and 
form  a  judg^menton  the  candidates  of  the  clergy  and 
on  others  proposed  by  themselves  in  accordance  with 
the  instruction  of  the  Sacred  Propaganda  under  date 
of  Jan.  21,  1861.  li  the  bishops  judge  that  the 
names  proposed  by  the  clergy  should  be  rejected  they 
will  not  neglect  to  give  their  reasons  to  the  Sacred 
Congregation. 

6.  Since  the  bishops  must  discuss  the  candidates 
in  accordance  with  the  instruction  of  Jan.  21,  1861. 
it  surely  is  advisable  that  the  consultors  and  rectors, 
unless  they  wish  to  have  their  nominations  rejected, 
should  select  only  those  to  whom  no  objection  can  be 


4  LEGAL   FORMULARY. 

made.  For  this  purpose  the  questions  which  are 
proposed  reg-arding-  the  necessary  qualities  of  candi- 
dates- for  the  episcopacy  are  g-iven  herewith,  taken 
from  the  aforesaid  iustruction  and  the  Second  Plenary 
Council  of  Baltimore.  First,  the  name,  surname, 
ag'e,  native  country  of  the  candidate  are  asked. 
Under  this  question  it  should  be  noted  that  the  age 
required  is  thirty  years  completed.  By  native  coun- 
try is  meant  the  place  of  birth.  The  civil  g-overn- 
ments  of  some  countries  positively  prohibit  any  alien 
from  occupying-  a  residential  see;  and  as  it  is  the  spirit 
of  the  Church  that  each  country  should  have  its  native 
clerg*y,  so  also  is  it  her  wish  that  bishops  be  natives 
or  at  least  naturalized  citizens.  Further,  g-rave 
complications  mig-ht  arise  in  the  United  States  re- 
garding- the  tenure  of  real  property  by  other  bishops 
than  citizens. 

7.  The  second  inquiry  is,  to  what  diocese  and 
province  does  the  candidate  belong-.  Under  this  head 
it  may  be  noted  that  the  g-eneral  law  requires  that 
the  candidate  be  a  cleric  of  the  diocese  whose  see  is 
to  be  filled .  '  'De  g-remio  ecclesi^, "  says  Reiff enstuel 
Lib.  /,  Tit,  6,n.  2jj.  Likewise  the  Roman  Breviary 
in  the  office  of  Pope  Celestin,  April  7,  as  well  as 
Cap.  12  Dist.  61,  says  that  this  Pontiff  enacted 
that  "in  the  creation  of  bishops  extraneous  clerics  or 
those  previously  unknown  should  not  be  chosen  to 
the  exclusion  of  meritorious  ones  in  the  church  or 
diocese  itself."  There  are  also  reasons  of  policy  for 
such  an  enactment.  A  clerg-yman  of  the  diocese 
knows  both  priests  and  people  better  than  a  stranger, 
and  naturally  has  more  influence  with  the  public 
than  one  commo-  from  another  diocese  or  state  where 


THE    NOMINATION    OF    BISHOPS.  D 

both  characteristics  and  policy  are  different.  He  is, 
therefore,  not  so  liable  to  make  mistakes  and  upset 
the  entire  reofinie  of  the  diocese.  Moreover,  it  is  bet- 
ter for  the  clerofy  to  be  ruled  by  one  they  know  than 
to  take  chances  on  the  disposition  of  one  whose  char- 
acter is  known  to  them  onh^  by  report.  However,  it 
should  be  remembered,  as  remarked  by  Zitelli,  Ap- 
paratus Juris  Ecclesiastic!,  pag^e  16,  that  for  ^ood 
reasons  the  voters  may  select  some  one  outside  their 
own  bod}^  and  even  outside  the  diocese,  but  in  doing- 
this  they  must  have  g^reat  care  to  select  some  one  in 
every  wa}^  more  worth}'  than  anyone  in  the  vacant 
diocese.  This  is  enacted  by  Pope  Celestin,  as  found 
in  Cap.  13  of  Distin.  61,  where  he  says:  "But  then 
another  mav  be  chosen  from  another  diocese,  if  in  the 
diocese  over  which  the  bishop  is  to  be  placed  no  one 
can  be  found  who  is  worthy,  which  we  do  not  believe 
occurs.  For  these  must  first  be  considered  and  re- 
jected, before  those  from  other  dioceses  can  be  rig^htly 
chosen."  If,  therefore,  the  consultors  and  irremov- 
able rectors  should  choose  a  strang-er  to  the  diocese, 
their  selection,  more  especially  if  complaint  were 
made,  would  be  liable  to  rejection  by  the  bishops  or 
the  Propag-anda.  {Confer  Pignatelli,  Tom.  VI, 
Consult.  g2.)  From  the  above  quotation  it  follows 
that  the  bishops  must  also  first  examine  whether 
there  are  worthy  candidates  in  the  widowed  diocese, 
before  selecting  priests  from  another  diocese  or  pro- 
vince. Especially  is  this  true  of  old  established  dio- 
ceses with  a  numerous  clerg*y. 

8.  The  third  question  asks  where  the  candidate 
has  made  his  studies  and  wnth  what  success.  The 
fourth  question  asks   whether  he  has  earned  any  de- 


(^  LEGAL   FORMULARY. 

grees  and  which  ones.  The  degrees  here  meant  are 
those  g-iven  by  Catholic  universities,  that  is,  such  as 
have  a  pontifical  charter  and  confer  dej^rees  by  papal 
authority.  Universities  which  are  Catholic  in  name, 
but  confer  degrees  only  by  state  or  civil  authority, 
cannot  give  their  laureates  any  canonical  privileges, 
for  their  degrees  are  not  recognized  by  the  Church. 
(S.  Cong-.  Cone.  2^  Afr.  166^,  21  Feb.  168^.  Confer 
Mo)iacelli  Sup-pl.  T.  /,  7i.  6.)  This  distinction  is  im- 
portant, for  doctors  and  licentiates  of  Catholic  uni- 
versities have  many  privileges  specifically  recognized 
in  church  law.  Some  of  these  privileges  are  the  fol- 
lowing: 1*^.  They  are  placed  in  dig-nity,  and  there- 
fore may  receive  papal  letters,  ordinarily  not  sent  to 
the  lower  clergy.  2^.  They  rank  with  nobles,  and 
by  their  degrees  obtain  true  nobility  and  all  its  priv- 
ileges. This  is  an  important  social  consideration, 
especially  in  E^urope.  3°.  They  are  exempt  from 
both  real  and  personal  taxes  according  to  the  Roman 
civil  law.  4*^.  There  is  always  a  strong  presumption 
in  their  favor  and  when  found  g-uilty  of  any  crime, 
according  to  the  same  law,  they  are  to  receive  lighter 
punishment  than  others.  This  holds  in  ecclesiastical 
law  even  to  the  present  day.  5°.  In  conferring  eccle- 
siastical dignities  and  benefices,  other  things  being 
equal,  doctors  and  licentiates  must  be  preferred.  In 
fact,  the  law  specifically  provides  that  the  cathedral 
chapter  must  choose  a  doctor  or  licentiate  of  law  or 
theology  to  act  as  administrator  of  the  diocese  when 
vacant,  and  if  the  chapter  should  choose  some  one 
else  not  a  laureate,  their  act  would  be  invalid.  In  a 
similar  way  there  is  an  obligation  to  choose  a  doctor 
or  licentiate  for  bishop  provided   he    has  the    other 


THE    NOMINATION    OF    BISHOPS.  / 

necessary  qualities.  Therefore,  one  of  tbe  questions 
to  be  answered  in  the  process  prepared  for  fillinof  an 
episcopal  see  is,  "What  deg-rees  has  the  candidate 
received  and  in  what  university?"  The  deg"rees  here 
meant  are  of  canon  law  and  theolog-y,  not  those  of 
arts  and  medicine.  The  honorary  deg^ree  of  LL.  D. 
granted  by  secular  colleg'es  is  not  recog'nized  in 
ecclesiastical  law. 

According"  to  the  g-eneral  law  of  the  church  a 
canonist  is  to  be  preferred  to  a  theolog-ian  in  filling-  a 
vacant  bishopric.  So  exacting-  is  the  law  that  doc- 
tors or  licentiates  must  be  chosen  for  bishops  that  in 
the  bulls  of  appointment  issued  from  the  Apostolic 
Chancery,  if  the  Pope  chooses  a  person  not  a  lau- 
reate, he  first  ofrants  a  dispensation  from  this  neces- 
sary requirement  and  records  it  in  the  bull  of  ap- 
pointment. It  follows  that  laureates  of  Catholic 
universities  have  an  inherent  rig-ht  to  be  considered 
in  filling-  the  vacant  see  of  the  diocese  to  which  they 
belong-,  and  a  neglect  to  consider  them  before  select- 
ing- from  outside  the  diocese  would  be  a  just  cause  of 
complaint  and  a  reason  for  rejecting-  the  candidates. 

9.  The  institutions  in  the  United  States  which 
confer  deg-rees  by  pontifical  authority  are:  The 
Catholic  University  of  America,  in  Washington,  D. 
C,  chartered  March  7,  1889;  Georgetown  Univer- 
sity, in  charge  of  the  Jesuits,  also  in  Washington, 
chartered  March  30,  1833;  St.  Mary's  University,  in 
Baltimore,  Md.,  in  charge  of  the  Sulpitian  Father-s, 
chartered  April  18,  1822,  by  Pope  Pius  VIII.  In 
Canada,  Ottawa  and  Laval  universities  have  pontifical 
charters.  At  present  E^ngland  and  x\ustralia  have 
no    Catholic    universities.      The    bishops  of   Ireland 


8  LEGAL    FORMULARY. 

have  a  charter  for  a  university,  but  it  has  never  been 
fully  developed.  In  1896  Pope  Leo  XIII  g-ranted 
Maynooth  colleg-e  authority  to  confer  deg-rees  in  the- 
olog-y  and  philosophy.  Belgium,  France,  Spain, 
Germany,  Switzerland,  Austria  and  especially  Italy 
have  universities  v^^hich  confer  decrees  by  papal 
authority. 

Doctors  or  masters  are  they  who  have  obtained  the 
higfhest  g-rade  and  insig^nia  in  theolog-y,  law,  medi- 
cine or  philosophy.  The  titles  of  master  and  doctor 
are  interchangeable;  but  custom  as  well  as  the  stat- 
utes of  certain  universities,  such  as  the  Sarbonne, 
Louvain,  Salamanca,  and  the  practice  of  the  Roman 
Court  have  brought  it  about  that  the}^  who  obtain 
the  hig-hest  degree  in  theology  are  called  masters  of 
theolog}^  but  they  who  obtain  a  similar  degree  in 
law  or  in  other  sciences  are  called  doctors. 

Licentiates  also  come  under  the  name  of  masters 
or  doctors,  and  participate  in  all  their  privileges. 
Licentiates  are  they  who  have  the  license  or  faculty 
of  taking  whenever  they  wish  the  highest  grade,  and 
the  public  insignia  thereof,  in  theology,  law  or  medi- 
cine, because  after  examination  they  were  not  only 
found  worthy,  but  were  solemnly  and  lawfully  given 
these  rights.  This  degree  is  not  given  by  sec- 
ular universities,  except  at  Cambridge,  England, 
and  there  only  in  medicine.  Bachelors  are  they  who 
have  obtained  the  first  testimony  of  their  progress 
and  the  first  deg'ree  in  any  science  or  faculty.  The 
requirements  for  this  degree  vary  considerably  in 
different  universities.  Bachelors  obtain  no  canonical 
or  ecclesiastical  privileges.  The  insignia  of  the  doc- 
torate are  the  four-cornered   cap,  and   a   gold   ring. 


THE    NOMINATION   OF    BISHOPS.  9 

with  a  siiigfle  stone  setting-,  which  is  to  be  worn  on 
the  ri«"ht  hand.  Some  universities  have  also  special 
insig"nia,  particularly  in  the  hoods  or  capes  worn  by 
their  laureates. 

Universities  which  confer  deg-rees  by  pontifical 
authority  can  ofive  them  only  to  such  candidates 
as  are  found  worthy  through  examination,  and  are 
sound  in  the  Catholic  faith  as  well  as  conspicuous  for 
morality.  During-  the  ceremony  of  conferring  the 
degree,  especially  in  theology,  the  candidate  is  re- 
quired to  make  a  profession  of  faith,  and  to  swear 
assent  to  the  following-  articles:  V .  That  he  will 
never  teach  or  write  intentionally  anything*  that  is 
repugnant  to  Holy  Scripture,  tradition,  the  defini- 
tions of  g'eneral  councils  or  the  decrees  of  the  Supreme 
Pontiffs.  2^.  That  he  will  be  watchful  in  doing  his 
share  to  preserve  the  unity  of  the  Church  and  not  let 
the  seamless  g^arment  of  Christ  be  rent  b}^  divisions; 
also  that  he  will  be  studious  in  seeing*  due  honor 
paid  to  the  Sovereign  Pontiff,  and  obedience  and  rev- 
erence to  his  own  bishop.  3°.  Under  the  same  oath 
he  promises  to  defend  the  Christian,  Catholic  and 
Apostolic  faith  even  to  the  effusion  of  his  blood. 

10.  The  fifth  question  of  the  process  asks  whether 
the  candidate  has  been  a  professor  and  if  so  of  what 
facult3^  The  sixth  reg*ards  the  parish  work  of  the 
candidate  and  his  success  therein.  The  seventh 
query  is  how  many  and  which  lang-uages  does  he 
know.  The  eighth  question  asks  what  offices  has  he 
filled  and  with  what  success.  The  ninth  inquires 
into  his  prudence  in  deliberations  and  in  action;  and 
the  tenth  asks  whether  he  is  in  good  bodily  health, 
temperate,  patient  and  well  versed  in  administering- 


10  LEGAL    FORMULARY. 

temporal  affairs.  The  eleventh  query  is  whether  he 
be  of  constant  or  of  chang-eable  mind;  the  twelfth, 
whether  he  be  of  gfood  reputation,  or  whether  at  any 
time  there  was  in  his  conduct  something-  ag^ainst 
ofood  morals.  The  thirteenth  question  asks  whether 
he  is  attentive  in  performing-  his  sacerdotal  duties, 
edifying-  and  observant  of  the  rubrics;  and  the  last 
asks  whether  in  dress,  carriag-e,  walk,  speech  and 
all  else  he  shows  forth  g-ravity  and  relig-ion. 

From  the  answers  to  all  these  questions  a  com- 
plete knowledg-e  of  the  candidates  can  be  g-athered, 
and  a  judicious  selection  seems  possible.  This  pro- 
cess is  of  oblig-ation  for  all  countries  subject  to  the 
Propag-anda. 

11.  When  there  is  question  of  desig-nating-  a  coad- 
jutor with  the  rig-ht  of  succession  to  a  bishop,  the 
same  method  is  followed  as  in  case  of  a  vacancy,  with 
this  only  difference  that  in  such  case  the  archbishop 
or  bishop,  for  whom  a  coadjutor  is  sougfht,  presides 
at  the  meeting-  of  the  consultors  and  irremovable  rec- 
tors, or  if  he  is  hindered  then  his  vicar  gfeneral  or 
some  other  deleg-ated  priest.  Further,  in  this  case 
it  is  not  improper  for  him  to  sug-g-est  the  names  of 
those  whom  he  judges  best  adapted  for  the  position 
of  coadjutor.  However,  the  voters  are  in  no  way 
bound  by  his  desig-nation.  When  there  is  question 
of  a  coadjutor  for  an  archbishop,  all  the  archbishops 
of  the  other  provinces  are  also  to  be  consulted.  This 
obtains  a  fortiori  when  a  new  archbishop  is  to  be 
selected.  For  the  appointment  of  only  an  auxiliary 
bishop  the  above  method  is  not  strictly  necessary. 

When  a  new  diocese  is  erected,  the  same  reg'ula- 
tions  are  followed,  except  that  the  consultors  of  the 


THE    NOMINATION    OF    BISHOPS.  11 

old  diocese  or  dioceses  from  which  the  new  one  is 
formed  and  the  irremovable  rectors  of  the  new  diocese 
meet  to  sug-gest  the  names  of  three  candidates. 

12.  In  Australia  nearly  the  same  method  is  pre- 
scribed as  in  the  United  States. 

In  Eng"land,  where  they  have  cathedral  chapters, 
the  dig'nitary  and  canons  of  the  vacant  see  meet 
under  the  presidency  of  the  archbishop,  or  if  he  is 
detained  or  there  is  question  of  a  vacancy  in  the 
archiepiscopal  see,  then  under  the  senior  bishop. 
The  presiding-  bishop,  however,  takes  no  other  part 
in  the  matter.  The  capitular  acts  are  immediately 
sent  to  the  archbishop  or  the  senior  bishop,  who 
summons  the  other  bishops  to  a  meeting-,  at  which, 
having*  compared  notes,  they  make  a  w^ritten  report 
on  each  of  the  three  candidates  and  annex  their  judg-- 
ment.  The  three  names,  it  should  be  noted,  are  ar- 
rang-ed  in  alphabetical  order. 

The  same  method  is  followed  in  Scotland  as  in 
E^ngland. 

13.  In  Ireland,  the  metropolitan  of  the  province  by 
letter  directs  the  vicar  capitular  to  summon  for  a 
meeting-,  to  be  held  twenty  days  after  the  call,  all  who 
have  a  right  to  recommend  candidates  to  the  Sover- 
eig"n  Pontiff.  All  parish  priests,  w^ho  being-  free 
from  censure,  have  actual  charg-e  of  parishes,  must 
be  summoned.  Where  there  is  a  cathedral  chapter 
the  canons  must  also  be  called.  The  metropolitan 
or  one  of  his  suffrag-ans  deleg-ated  by  him  will  pre- 
side; but  pending'  a  vacancy  in  the  metropolitan  see 
the  senior  suffrag-an  wnll  preside.  After  an  oath  to 
choose  the  one  they  deem  worthy,  all  will  cast  their 
ballots.     A    duplicate  cop}'  of  the   minutes  is  made, 


12  I^EGAL   FORMUIyARY. 

one  of  which  the  vicar  capitular  sends  to  the  Propa- 
o*anda,  the  other  to  the  metropolitan.  The  metro- 
politan and  the  sufiFrag-an  bishops  then  meet  and  form 
a  judg"ment  on  the  candidates,  which  is  put  in  writ- 
ing' and  sig"ned  b}^  each  bishop,  sealed  and  sent  to  the 
Holy  See.  When  the  commendation  is  once  made  by 
the  clerg"y,  if  the  bishops  deem  the  three  candidates 
unworthy,  the  Sovereig'n  Pontiff  will  make  the  ap- 
pointment without  another  recommendation.  The 
same  method  is  followed  in  nominating-  a  bishop- 
coadjutor  with  the  rig"ht  of  succession,  except  that 
in  such  case  the  bishop  who  seeks  the  coadjutor 
presides. 

14.  In  Holland  the  cathedral  chapters  present  the 
names  of  three  candidates,  concerning-  whom  the 
bishops  form  a  judg"ment  and  report  to  the  Holy  See 
whom  they  deem  more  worthy. 

In  Canada  the  archbishop  and  the  bishops  of  the 
province  propose  three  names  to  the  Propag^anda. 
In  other  places,  where  the  law  gfives  no  one  the  rig^ht 
of  recommendation,  the  Sacred  Cong'reg'ation  of  the 
Propag-anda  sug-g-ests  a  worthy  candidate  to  the 
Holy  Father. 

In  those  places  where  the  hierarchy  is  not  yet 
established,  but  where  vicars  apostolic  with  the 
episcopal  character  exercise  jurisdiction,  the  superior 
of  the  relig-ious  order  in  charg^e  of  the  missions  of 
that  territory  recommends  a  person  for  vicar  apos- 
tolic. Where  no  relig-ious  order  has  control  the  Holy 
Father,  after  consulting-  the  Propag^anda,  makes  the 
appointment.     * 

15.  No  special  form  is  required  for  drawing*  up  the 
minutes  of    the   meeting  of  the   consultors   and  irre- 


THE    NOMINATION    OF    BISHOPS.  13 

movable  rectors  mentioned  above.  Certain  facts 
should  of  necessity  be  stated,  such  as  the  date  and 
place  of  the  meeting-,  the  previous  issuance  of  the 
call,  the  bishop  presiding",  the  names  of  those  present 
and  whether  they  constitute  all  or  at  least  a  majority 
of  those  entitled  to  vote.  The  details  of  the  meeting- 
may  or  may  not  be  g-iven,  but  care  should  be  taken 
to  express  distinctly  the  full  names  of  those  selected 
for  the  three  positions  of  dig'nissimus,  dig-nior,  dig'nus. 
The  sig-natures  of  the  presiding*  bishop  and  of  the 
secretary  of  the  meeting'  must  be  attached  to  the 
document.  Good  policy  usually  requires  that  the 
names  proposed  be  kept  secret;  but  there  is  no  au- 
thority for  exacting-  an  oath  to  this  effect. 


CHAPTER  II. 

APPOINTMENT    OF    VICAR    GENERAL. 

16.  Usually  one  of  the  first  concerns  of  a  bishop  is 
the  selection  of  a  competent  vicar  g^eneral.  A  vicar 
creneral  is  a  cleric  leg"itimately  appointed  to  exercise 
in  a  general  way  episcopal  jurisdiction  in  the  bishop's 
stead  and  in  such  a  manner  that  his  official  acts  are 
considered  the  acts  of  the  bishop  himself.  Once 
appointed  the  jurisdiction  of  the  vicar  general  is 
ordinary  from  the  office,  not  delegated  from  the 
bishop.  Hence  no  appeal  lies  to  the  bishop  from  the 
action  of  the  vicar  general,  but  only  to  the  metropol- 
itan or  other  higher  authority. 

17.  It  is  controverted  whether  a  vicar  general 
must  have  by  virtue  of  his  office  jurisdiction  in  tem- 
poral matters  as  well  as  in  spiritual;  but  it  seems 
from  the  council  of  Trent  (Sess.  /j,  chap.  2  and  j 
de  re/.)  and  from  the  practice  of  the  Roman  Court 
that  a  cleric  with  general  jurisdiction  over  the  dio- 
cese only  in  spiritual  matters  may  nevertheless 
rightly  be  called  a  vicar  general.  On  the  other  hand, 
a  cleric  with  jurisdiction  only  in  temporal  matters 
even  over  the  whole  diocese,  is  surely  not  a  vicar 
general,  but,  as  doctors  teach,  is  to  be  considered  a 
procurator  or  econome  and  cannot  be  a  delegate  of 
the  Holy  See  unless  he  is  otherwise  in  dignity. 
When  a  bishop  appoints  a   cleric  his   vicar  general 

14 


APPOINTMENT    OF    VICAR    GENERAL.  15 

without'  restriction,  the  law  ^ives  the  appointee 
jurisdiction  in  both  spiritual  and  temporal  matters. 
Hence  if  a  bishop  prefers  that  the  vicar  g'eneral 
should  not  interfere  in  the  temporal  administration 
of  the  diocese  he  should  be  careful  to  limit  jurisdic- 
tion in  the  document  of  appointment.  For  this 
reason,  also,  a  copy  of  the  appointment  of  the  vicar 
general  should  be  broug^ht  to  the  notice  of  all  the 
clerg'y  of  the  diocese.  They  are  not  only  in  reason 
but  in  law  entitled  to  know  what  powders  diocesan 
officials  possess.  What  is  said  of  the  vicar  g^eneral 
in  this  respect  is  true  of  all  others  claiming*  to  possess 
diocesan  authorit}^  or  jurisdiction,  the  bishop  alone 
excepted,  for  the  law  sufficiently  proclaims  the  extent 
of  his  authority. 

18.  The  present  law  g-athered  from  Roman  decis- 
ions says  that  a  vicar  gfeneral  must  be  a  cleric  at 
least  t\venty-iive  years  of  ag'e,  and  a  doctor  or  licen- 
tiate of  law  or  at  least  of  theolog-y  in  some  pontifical 
universit}-.  The  Sacred  Cong'reg'ation  of  Bishvops 
and  Regfulars  has  several  times  decided  that  a  bishop 
cannot  choose  a  vicar  general  among*  the  diocesan 
clerg-y  but  must  select  a  cleric  from  another  diocese, 
and  Bouix  sa3^s  a  papal  dispensation  is  required  be- 
fore a  bishop  may  appoint  a  diocesan  his  vicar  gen- 
eral. It  is  also  the  common  law  that  no  parish 
priest  or  rector  of  the  seminary  can  be  the  vicar 
general,  these  offices  being  incompatible.  It  is  inter- 
esting to  note  that  the  schemata  of  the  Vatican 
council  contained  a  distinct  chapter  on  the  vicar  gen- 
eral— this  being  the  first  time  the  office  is  treated 
ex  ^rofesso  in  any  g-eneral  council.  The  schema 
proposed  "that  the  vicar  general  should  be  a  priest, 


16  IvEGAIv    FORMULARY. 

not  less  than  thirty  years  of  ag-e,  a  doctor  or  licen- 
tiate in  canon  law,  and  not  the  canon  penitentiary,  a 
parish  priest  or  anyone  having-  the  care  of  souls,  nor 
the  brother  or  nephew  of  the  bishop." 

Up  to  the  present  time  in  the  United  States  the 
vicar  g-eneral  has  been  chosen  usually  from  the  dio- 
cesan clerg-y  and  not  unfrequently  parish  priests  have 
been  selected.  The  necessary  qualification  of  the 
doctorate  or  knowledg^e  of  law  seems  to  have  been 
overlooked  in  manv  cases  and  the  vicar  g"eneral 
chosen  for  such  considerations  as  lonof,  meritorious 
service,  friendship  and  the  prominence  of  one's  con- 
g'reg'ation.  Whether  this  has  been  to  the  advantag^e 
of  the  church  and  the  better  administration  of  justice 
seems  very  doubtful.  The  vicar  general,  like  a 
bishop,  is  supposed  to  be  chosen  for  his  personal 
qualifications,  chief  among-  which  are  a  knowledge 
of  canon  law,  fearlessness  in  decision  and  prudence  in 
action.  Ferraris,  verho  Vicarii  Generalis,  art.  /,  ;/. 
j(?,  quoting  decisions  of  the  Sacred  Congregation, 
concludes  that  if  recourse  is  had  to  the  Sacred  Con- 
gregation of  Bishops  and  Regulars  against  a  bishop 
not  having  a  canonist  as  his  vicar  general,  the  order 
is  generally  sent  that  the  bishop  must  have  a  doctor 
as  his  vicar  general.  However,  when  the  bishop 
himself  is  a  jurist  the  S.  Cong-regation  sometimes 
permits  him  to  have  one  not  a  doctor  if  he  is  other- 
wise fit. 

19.  Ever}^  bishop  of  a  residential  see  may  ap- 
point a  vicar  general.  He  need  seek  neither  the  con- 
sent nor  the  advice  of  his  chapter  or  consultors  in 
the  matter.  The  administrator  of  a  vacant  see, 
after   the  confirmation   of   his  own    appointment  bv 


VICAR    GENERAL.  17 

the  Holy  See,  may  appoint  a  vicar  g-eneral,  because 
he  then  has  ordinary  jurisdiction.  The  administra- 
tor of  a  diocese  whose  bishop  is  still  living-  seems 
to  have  the  same  rig-ht,  if  he  is  the  sole  administra- 
tor; if  he  is  not  sole  administrator  there  could  easil}' 
be  a  clashinio"  of  authorit}-  between  the  vicar  g-eneral 
of  the  administrator  and  the  vicar  ifcneral  of  the 
absent  bishop. 

The  Holy  See  mav  and  in  fact  s(jmetimes  does  ai)- 
point  a  vicar  g-eneral  for  a  bishop,  especially  when 
the  bishop  alone  cannot  administer  his  diocese  and 
nevertheless  neglects  appointing-  a  vicar  g-eneral. 
This  appointment  by  the  Holy  See  is  g-enerally  made 
by  asking-  the  bishop  to  send  the  Holy  See  an  appoint- 
ment of  a  vicar  g-eneral  sig-ned  by  the  bishop,  but 
with  the  name  of  the  appointee  left  blank.  The 
Holy  See  then  chooses  the  person,  fills  in  the  name 
and  sends  the  vicar  g-eneral  into  the  diocese.  The 
bishop  has  no  power  without  the  consent  of  the  Holy 
See  to  remove  a  vicar  general  -  thus  constituted. 
However,  in  such  a  case  the  faculties  of  the  vicar 
general  expire  with  the  death  of  the  bishop. 

20.  At  times  also  the  H0I3'  See  appoints  a  vicar 
apostolic  to  rule  a  diocese  instead  of  its  bishop.  In 
such  cases  the  exercise  of  all  jurisdiction  belongs  to 
the  vicar  and  the  bishop  may  not  interfere  in  any 
way.  Various  causes  render  necessary  the  appoint- 
ment of  such  a  vicar,  but  they  ma}^  be  reduced  to 
this  one;  namely,  w^hen  there  is  grave  reason,  either 
with  or  without  the  fault  of  the  bishop,  that  he 
should  be  removed  from  the  administration  of  the 
diocese,  and  if  at  the  same  time  the  cause  is  not  such 
as  to  entail  deposition  and  again  for  other  reasons  it 


18  LEGAL   FORMULARY. 

is  uot  expedient  to  appoint  a  coadjutor  bishop. 
{Confer  Roman  Court  by  Baart,  f>ag-e  j2j.)  When  a 
vicar  apostolic  is  in  charg-e  the  bishop  can  have  no 
vicar  general.  The  appointment  of  a  vicar  apostolic 
is  made  direct  by  an  apostolic  brief  or  a  letter  of  the 
Sacred  Congregation  of  Bishops  and  Reg*ulars,  or  in 
the  United  States,  of  the  Propaganda. 

21.  It  is  controverted  whether  a  bishop  is  obliged 
to  appoint  a  vicar  general.  The  Roman  Rota  holds 
that  he  is  not  strictly  obliged  if  the  bishop  resides 
in  his  own  diocese  constantly.  In  practice,  if  re- 
course is  had  to  the  Holy  See  by  the  diocesans  and  a 
showing  made  that  a  vicar  general  was  formerly 
appointed  in  the  diocese,  the  Holy  See  will  order  an 
appointment.  On  the  other  hand  in  a  small  or  very 
poor  diocese  a  dispensation  is  sometimes  granted, 
and  even  renewed,  freeing  the  bishop  from  the  neces- 
sit}^  of  constituting  a  vicar  general.  It  is  also  con- 
troverted whether  a  bishop  as  a  rule  can  have  sev- 
eral vicars  general.  When  there  are  different  rites 
in  his  diocese  such  as  the  Latin  and  the  Greek,  the 
bishop  not  only  may  but  should  appoint  a  vicar  g'en- 
eral  for  each  rite.  Again  when  a  bishop  rules  two 
dioceses  he  may  have  a  vicar  general  for  each,  espec- 
ially if  the  dioceses  are  distant.  While  there  can  be 
no  "honorary  vicars  g'eneral"  still  where  such  is  the 
custom  it  seems  more  probable  that  two  vicars  gen- 
eral may  be  appointed,  each  having  jurisdiction  in 
solidiim  and  both  being  equal.  In  such  case,  as  in 
the  case  of  one  vicar  general,  they  must  both  reside 
in  the  episcopal  city.  {Communis  doctorum.)  While 
each  retains  full  jurisdiction,  still  as  a  matter  of  con- 
venience they  may  divide  work.     However,   accord- 


VICAR    GENERAL.  19 

iug*  to  a  declaration  of  the  Sacred  Propa«-anda  dated 
Dec.  22,  189b,  It  is  certain  that  a  bishop  in  the  United 
States  can  sub-dele^rate  the  extraordinary  faculties 
contained  in  schedules  D  and  E  to  only  one  vicar 
ofeneral.  Formerly  several  vicars  general  were  rec- 
og-nized  in  these  faculties,  but  the  Holy  Office  ordered 
a  chano-e  so  that  only  one  is  now  recog"nized. 

22.  The  vicarship  g-eneral  is  a  diofnity,  for  it  is  an 
office  to  which  precedence  with  jurisdiction  is  an- 
nexed. But  it  is  not  a  prelacy,  because  the  vicar 
.jLJfeneral  exercises  gfovernment  not  in  his  own  name, 
but  in  that  of  another.  His  jurisdiction  expires  by 
his  own  resio'nation  or  that  of  the  bishop,  by  the 
death,  transfer,  suspension  or  deposition  of  the 
bishop,  or  by  the  revocation  of  his  appointment  by 
the  bishop.  This  revocation,  while  always  valid,  is 
not  licit  except  for  g-rave  and  just  cause,  w^hich  being 
absent  the  Hol}^  See  may  re-instate  the  vicar  general. 
In  the  diocese  over  which  he  has  jurisdiction  the 
vicar  general  takes  precedence  next  after  the  bishop. 

23.  The  vicar  general  is  entitled  de  jure  conimnni 
to  a  support  which  the  bishop  must  pay  from  his 
own  salary  or  income.  The  bishop  is  also  responsi- 
ble for  the  excesses  or  mistakes  of  his  vicar  general 
in  official  acts,  especially  if  his  bad  character  or  igno- 
rance is  or  should  be  known  to  the  bishop.  For  his 
official  misdeeds,  according  to  a  decision  of  the  Sacred 
Congregation  of  the  Council,  the  metropolitan  even 
in  the  first  instance  is  the  competent  judge,  but  for 
his  private  evil  deeds  the  bishop  may  punish  his 
vicar  general. 

24.  By  virtue  of  his  office  the  vicar  general  can  as 
a  rule  do  what   the  bishop  can  do  de  jure  ordiiiario: 


20  LEGAL    FORMULARY. 

but  at  present  both  the  law  and  the  will  of  the 
bishop  usually  require  that  a  special  mandate  be 
o'iven  the  vicar  o-eneral  in  order  tha,t  he  may  act 
validl}'  in  certain  cases.  A  vicar  ^-eneral  in  the 
United  States  appointed  oralh^  or  without  a  special 
mandate  may  rig-htly  concur  with  all  the  pastors  of 
the  diocese  in  the  administration  of  the  sacraments 
and  in  preaching-.  Where  the  decree  "Tametsi"  is 
in  voo-ue  he,  bein«f  the  ordinary,  may  validly  assist  at 
marriag'es.  He  may  hear  confessions,  absolve  from 
cases  reserved  to  the  ordinary,  (not  to  the  bishop 
solely)  and  also  g-ive  other  priests  faculties  to  do  so. 
He  can  appoint  a  deleg*ate  for  certain  cases,  dispense 
with  all  proclamations  of  the  banns,  compel  pastors 
of  parishes  to  fulfill  their  care  of  souls  even  by  order- 
ing' them  to  accept  assistants. 

25.  A  special  mandate  is  required  by  the  vicar 
general,  even  thoug-h  he  be  a  bishop,  before  he  ma}^ 
g-rant  dimissory  letters  for  the  reception  of  orders 
fexcept  when  the  bishop  is  in  distant  countries  and 
will  not  return  for  a  long*  time.)  A  special  mandate 
is  also  required  for  appointments  to  parishes  or  ben- 
efices, as  well  as  for  erecting-,  dividing"  or  uniting-  the 
same.  Neither  can  he  g"ive  another  bishop  permis- 
sion to  exercise  pontificalia  in  the  diocese.  Further 
he  cannot  visit  the  diocese,  call  a  synod,  take  cog- 
nizance of  the  g-raver  crimes  of  ecclesiastics,  nor  de- 
pose them  from  benefice,  parish  or  order;  nor  in  gfen- 
eral  can  he  dispose  of  matters  of  a  g-rave  character. 
However  all  these  thiug-s  he  may  do  by  a  special 
mandate  g-iven  either  once  for  all  or  for  the  individ- 
ual case. 

Usually  and  rig-htly  a  l/ishop,   even  thoug-h  he  has 


V^ICAR    GENERAL.  21 

a  bishop  for  vicar  o-eneral,  reserves  for  himself  cer- 
tain powers,  such  as  conferrino*  benefices  and  par- 
ishes, adniittino-  priests  into  the  diocese  or  g^rantin^* 
exeats  to  leave  it,  blessing-  the  holy  oils,  g-iving-  con- 
firmation, consecrating  churches,  conferrinor  holv 
orders,  g-ranting- other  bishops  permission  to  use  pon- 
tificalia in  his  diocese.  In  case  he  wishes  the  vicar 
g'eneral  to  act  he  g^ives  him  special  jurisdiction  for 
the  individual  case,  either  verbally  or  by  note. 

26.  In  those  matters  in  which  the  bishop  acts  as 
the  deleg'ate  bv  law  of  the  Holv  See  he  usuallv  g-ives 
his  vicar  g*eneral  jurisdiction  by  a  special  mandate. 
In  the  United  States  and  other  countries  where 
bishops  receive  extraordinary  faculties  from  the  Holy 
See,  the  bishop  by  special  mandate,  iii  quantum 
possiuuHS,  gives  his  vicar  g-eneral  the  faculties  in 
Form  I  and  Facultates  Extraordinaria?  C.  But  he 
should  not  include  the  Facultates  Extraordinaria^  D  . 
and  E  in  any  gfeneral  mandate.  Neither  can  he  sub- 
deleg*ate  these  faculties  to  two  vicars  greneral  nor  to 
a  chancellor.  The  answer  of  the  Propag'anda  Dec. 
22,  18%,  says  that  a  bishop  should  nominate  a  vicar 
g"eneral  in  curia  and  sub-delegfate  these  faculties  to 
him  only,  and,  if  necessary,  also  to  two  or  three 
priests  in  the  remote  part  of  the  diocese,  but  only 
for  a  certain  number  of  urg-ent  cases  in  which  access 
cannot  be  had  to  the  bishop.  For  safety  these  sub- 
deleg-ations  should  be  in  writing-  and  state  the  date 
whereon  the  bishop  himself  received  the  faculties 
from  the  Holv  See. 

27.  Not  only  to  prevent  confusion,  but  also  for 
safety  and  lest  his  authority  be  disputed,  the  vicar 
•g-eneral  should  be  appointed  in  writing-  and  this  doc- 


22  LvEGAL    FORMULARY. 

ument  be  recorded  in  the  chancery  and  made  known 
to  the  diocesan  clergfy.  It  is  presumed  that  a  vicar 
t^eneral  has  jurisdiction  in  the  matters  mentioned 
above  in  number  24;  but  he  is  oblig^ed  to  publish  his 
authority  for  claiming-  jurisdiction  in  the  matters  re- 
quiring" a  special  mandate.  Herewith  is  gfiven  a 
form  for  the  appointment  of  a  vicar  gfeneral.  If  two 
vicars  gfeneral  are  appointed,  exactly  the  same  doc- 
ument, changfing-  only  the  name,  should  be  sent  to 
each,  for  they  must  be  appointed  in  solidimi.  E)ach 
may  then  receive  instructions  as  to  the  division  of 
work.  It  seems  more  prudent  to  g'ive  the  vicar  g*en- 
eral  a  full  commission,  and  then,  if  the  bishop  desires 
the  vicar  not  to  interfere  in  certain  matters,  simply 
to  so  inform  him.  In  case  the  bishop  is  then  called 
away  suddenly  there  will  be  no  doubt  of  the  juris- 
diction of  the  vicar  g^eneral. 

''N —  Dei  et  Apostolica.^  Sedis  g-ratia  Kpiscopus  N. 

Dilecto  Nobis  in  Christo  N — ,  salutem  in  Domino. 

Cum  onus  Kpiscopalis  ministerii  tanti  sit  momenti, 
ut  etiam  ipsis  angelicis  humeris  formidandum  videa- 
tur,  operas  pretium  duximus  in  administratione  Epis- 
copatus  N —  quem  Sanctissimus  Dominus  N —  Papa 
nostrse  imbecillitati  superimposuit,  vicarium  idoneum 
advocare,  qui  partem  sollicitudinis  nostrae  in  se 
assumendo,  pondus  quo  ultra  vires  premimur  alleviet. 
Hinc  aciem  nostras  mentis  in  personam  tuam  diri- 
g^entes,  et  de  fidelitate,  probitate,  prudentia,  scientia 
et  experientia,  aliisqiie  quibus  polles  virtutibus  plene 
confisi,  Te  nostrum  Vicarium  Generalem  ad  nostrum 
beneplacitum  in  dicto  nostro  Episcopatu  N.  in  spirit- 
ualibus  et  temporalibus  tenore  prsesentium  facimus, 
constituimus  et  deputamus,  dantes  et  concedentes 
Tibi:  1^  potestatem  officii  ordinariam,  et  2^  man- 
datum  specialeecclesias,  altaria  et  oratoria  aedificata, 


VICAR    GENERAL.  23 

et  aedificanda  et  divino  cultui  deputata  benedicetidi. 
eaque  poUuta  (non  tamen  consecrata)  reconciliandi: 
a  casibus  quibuscunque  Nobis  reservatis  absolvendi 
et  aliis  confessariis  ut  ab  iisdetii  absolvere  possint 
facultatem  deleg-andi,  publicas,  et  solemnes  poeniten- 
tias  injungendi,  letteras  commendatltias  et  testimo- 
niales  concedeiidi,  et  insuper  dimissorlas  ad  quos- 
cuuque  ordines  datidi  et  super  interstitiis  dispensandi 
Nobis  tamen  a  Dioecesi  absentibus;  causas  matrimo- 
niales  cog-noscendi  et  decidendi,  procurationem  visi- 
tationis,  synodaticum  seu  cathedraticum  aliasque 
consuetas  pecunias,  et  charitativum  subsidium,  ut 
juris  erit,  exig-endi;  3""  mandatura  item  speciale, 
(Nobis  tamen  prius  consultis  nisi  urg-eat  moralis  nec- 
essitas)  novas  parochias  et  missiones  erigendi  et 
erectas  collapsasque  reficiendi,  ad  parochias  vacantes 
coucursum  indicendi  et  economos  tempore  vacationis 
instituendi,  coadjutores  rectoribus  parochiarum  im- 
peritis  et  infirmis  dandi;  causas  omnes  ad  forum 
nostrum  tam  de  jure  quam  ex  consuetudine  spectantes 
et  pertinentes,  etiamsi  feudales  et  ha^resis  sint.  cog- 
noscendi  et  decidendi:  edicta  nostra  exequendi,  cen- 
suras  fulminandi  et  ab  ordine,  officiis,  administratione 
et  beneficiis,  prout  juris  erit,  suspendendi,  privandi, 
destituendi  et  deponendi;  inquisitos,  excommunicatos 
a  canone,  suspensos  et  interdictos  a  jure  in  casibus 
Nobis  permissis  absolvendi;  causas  criminales  cog'- 
noscendi  et  decidendi,  pias  voluntates  exequendi,  in 
alienatione  bonorum  ecclesiarum  et  locorum  piorum 
ad  formam  sacrorum  canonum  auctoritatem  prasstandi 
et  decreta  interponendi:  loca  pia  etiam  exempta  et 
monasteria  monialium  visitandi,  literas  apostolicas 
Nobis  seu  vicario  nostro  directas  et  dirig'endas  aper- 
iendi  et  (nisi  industria  persona?  eligatur)  exequendi: 
jurisdictionem  in  regulares  et  exemptos  ad  formam 
Sac.  Concil.  Tridentini,  constitutionum  Apost.  et 
decretorum  Sac.  Cong,  exercendi,  confessarios  tum 
seculares  tum  regulares  exaniinandi  et  ad  tempus 
approbandi    et   facultatem   eis    concessam    ex    causa 


24  LEGAL   FORMULARY. 

revocandi,  voluntatem  puellarum  habitum  religionis 
suscipere  sive  profiterl  volentium  rNobis  impeditis 
aut  absentibus)  explorandi,  liceutias  pro  ingressu  in 
clauslrum  monialium,  pro  rebus  taiitutn  necessariis, 
officialibus,  artilicibus  et  colonis  concedendi. 

4^  Ad  haec,  commuuicamus  Tibi  cum  facultatc 
sub-delegandi  in  quantum  ordo  permittit  et  Nos 
possuraus,  Facultates  in  Forma  I  a  Sancta  Sede 
Nobis  concessas  die mensis 18 — ,  et  Facul- 
tates   Kxtraordinarias    C,    ab    eadem    Sancta    Sede 

die mensis 18 — ,     Nobis    concessas.       Facul- 

tatem  insuper  concedimus  unum  vel  plures  vicarios, 
Nobis  absentibus,  in  casu  alicujus  necessitatis 
cum  eadem  vel  minori  auctoritate  nomine 
nostro  ad  tenipus  substituendi,  et  cetera  exercendi 
qua  ad  officium  vicariatus  noscuntur  pertinere. 
Volumus  autem  quod  in  Vicarium  nostrum  g"eneralem 
onines  Nobis  in  episcopatu  et  jurisdictione  subjecti 
Te  recog"noscant,  recipiant  et  admittaut,  atque  ut 
par  est,  Tibi  obediant.  Si  quis  vero  inobediens 
fuerit  condiofna  poena  feriatur. 

In  quorum  fidem  nomen  nostrum  et  siii'illum  im- 
posuimus. 

Datum die — — -mensis A.  D.  189~. 

[l.  s.]  N.  N.  Episcopus  N. 

N.  N.  Secretarius." 

If  the  bishop  has  already  appointed  his  chancellor 
this  official  should  sig-n  the  above  document  instead 
of  the  bishop's  secretary. 

28.  If  an  archbishop  with  suffragans  is  to  appoint 
a  vicar  general,  with,  a  chang^e  of  names,  the  same 
form  as  that  used  by  a  bishop  may  be  employed. 
But  because  of  his  appellate  jurisdiction  the  follow- 
\no;  should  be  inserted  before  the  4^  of  the  above  form: 

"Ut  cuncta  autem  adimpleantur  ex  omni  parte 
quct'   pertinent  ad  prinium   (u'dineni    hierarchicum   et 


VICAR    GENERAL.  2d 

ecclesiam  metropolitanam,  neciion  ad  digriitateni 
nostram  et  jurlsdictionem,  Tibi  etiani  speciale  man- 
datum  damus  et  concedimus  causas  criminales  ct 
civiles,  matrimoniales  et  beneficiales  et  quascunque 
alias  tarn  principales  quam  iucidentes  et  per  appella- 
tioiiem  devolutas  et  in  posterum  devolvendas,  et  quae 
ad  dictam  nostram  ecclesiam  pertinebunt  de  jure  vel 
consuetudine,  audiendi  et  de  ipsis  coefnoscendi;  et 
cetera  omnia  quae  sunt  episcopalis  et  archiepiscopali*^ 
jurisdictionis  exercendi  et  terminandi/' 

29.  When  the  vicar  general  is  elected  he  must  lake 
possession  of  his  office  reg'ularly.  Where  there  is  a 
cathedral  chaper,  at  an  appointed  time  the  letters 
of  appointment  are  read  before  it  by  a  notary  or  the 
chancellor,  and  a  record  of  the  matter  is^made  on  the 
letters  themselves  and  filed  also  in  the  chancery 
office.     This  form  may  be  used: 

"In  nomine  Domini,  Amen.  Reverendus  Dominus 
N.  possessionem  cepit  sui  officii  vicariatus,  mediante 
mandato   episcopi    (vel     archiepiscopi)     praesentibus 

omnibus  (vel )  dominis  canonicis  et  dignitatibus 

capituli  hujus  cathedralis  ecclesi^;  die mense 

anno hora .     In  quorum  fidem  etc.     Datum  in 

urbe die mense anno .       Eofo    N.     N. 

Notarius  (vel  cancellarius)  curiae  episcopalis." 

If  there  is  no  chapter  then  a  record  ma}'  be  made 
in  the  chancery  office  and  a  notice  be  sent  by  mail  tc 
the  clero-v  of  the  diocese.  A  similar  form  mav  be 
used,  with  proper  chang-es,  for  recordin^r  the  taking- 
possession  of  other  ecclesiastical  offices;  for  by  com- 
mon law  every  official  must  take  possession  regularly. 

30.  When  the  vicar  general  desires  to  be  absent  or 
for  another  reason  wishes  to  sub-delegate  he  may 
use  this  form: 


,> 


26  LEGAL   FORMULARY. 

"In  the  name  of  Christ,  Amen.  N.,  N.,  vicar  gfeu- 
eral  in  spiritual  and  temporal  matters  of  the  Most  Rev- 
erend N.  N.,  the  Bishop  of  N — ,  wishing"  to  be 
absent  from  the  city  of  N — ,  for  the  purpose  of 
(here  state  the  reason),  in  order  .that  justice  may  be 
administered  in  those  matters  which  pertain  to  epis- 
copal government,  has  substituted,  deputed  and 
placed  in  his  stead  until  his  return  the  Reverend  N.  N. 
with  the  same  authority  which  he  himself  possesses. 
Hoc  et  omni  meliori  modo. 

Dated .  ^Ro,  N.  N.  Vicar  General. 

In  the  presence  of  N —  and  N — ,  Witnesses. 

N.  N.  Chancellor." 

This  form  is  to  be  placed  in  the  chancery  in  orig- 
inal or  copy. 

31.  When  the  Holy  See  appoints  a  vicar  apostolic 
for  a  vacant  diocese  at  times  it  uses  the  form  of 
brief,  which  it  is  not  necessary  to  quote,  since  it  is 
beyond  the  scope  of  this  work.  But  when  the  Sacred 
Congregation  makes  the  appointment,  the  letjter  is 
couched  in  about  these  words: 

"To  the  Reverend  N.  N.  Vicar  Apostolic.  Rev- 
erend Sir:  His  Holiness,  for  reasons  known  to  his 
sublime  prudence,  has  deigned  to  appoint  you  with 
the  title  of  vicar  apostolic  to  the  government  of  the 
vacant  episcopal  see  (church)  of  N — ,  with  all  the 
necessary  and  opportune  usual  faculties,  emoluments, 
and  prerogatives  except  those  of  conferring  benefices 
and  granting  dimissory  letters  to  those  to  be  pro- 
moted to  orders.  Fail  not,  therefore,  to  correspond 
with  due  application  to  the  favor  which  His  Holiness 
has  thus  deig*ned  to  confer,  and  may  God  there 
prosper  you. 

Rome .     Cardinal . 

M — ,  Archbishop  of ,  Secretary." 

32.  When,  however,  a  vicar  apostolic  is  appointed 


VICAK    APOSTOLIC.  27 

by  the  Holy  See,  not  durinf^  a  vacancy,  but  in  order 
to  suspend  the  jurisdiction  of  the  bishop,  the  Sacred 
Cono-reofation  uses  letters  in  about  this  form: 

''To  the  Rev.  N.  N.  Vicar  Apostolic.  Reverend 
Sir:  An  order  having"  been  made  by  His  Holiness 
that  a  vicar  apostolic  be  sent  for  the  g-overnment  of 

the  see  of ,  it  was  resolved  to  depute  you   to  the 

exercise  of  this  charg^e,  with  the  provision  of  200 
scudi  a  year  besides  the  emoluments  of  the  office, 
expenses  ofoing-  and  returning"  and  proper  habitation 
in  the  episcopal  palace,  or  somewhere  else  at  the 
expense  of  the  bishop's  manse;  communicating-  to 
you  for  such  purpose  by  means  of  these  presents  all 
the  faculties  .usually  gfranted  to  vicars  apostolic, 
except  only  the  conferring"  of  benefices  and  the  g^rant- 
ing"  of  dimissory  letters;  sig'nifying-  to  you  also  to 
take  possession  as  soon  as  possible  of  this  charge. 
And  may  God  prosper  you." 

The  following-  is  the  letter  sent  to  the  bishop  in 
such  cases:  , 

"His  Holiness  having"  resolved  to  depute  a  vicar 
apostolic  to  the  gfovernment  of  your  see  for  causes 
known  to  His  Holiness,  I  make  this  known  to  Your 
Lordship  in  order  that  you  may  conform  properly  to 
the  resolution  of  His  Holiness,  being-  content  to  leave 
toN.  N.  Dig-nitary  of  N — ,  appointed  to  that  charg-e 
the  gfovernment  of  the  said  see. 

Following"  is  the  letter  sent  to  the  chapter  in  such 
cases. 

"His  Holiness,  Pope  N — ,  having"  resolved,  for 
reasons  known  to  himself,  to  depute  a  vicar  apostolic 
to  the  g"overnment  of  your  church  and  having- 
for  that  purpose  chosen  the  person  of  N.  N.  I  inform 
you  thereof  and  notify  you  to  the  end  that  3'ou  may 
g"ive  him  possession  of  it,  and  that  you  may  show  him 


28  LEGAL   FORMULARY. 

proper    obedieace.      This    much    do    and    may    God 
prosper  you.     Dated  Rome,  etc." 

Each  of  these  letters  is  sig-ned  bv  the  Cardinal 
Prefect  and  by  the  secretary  of  the  Cougreg^ation 
and  properly  sealed  and  addressed. 

When  a  vicar  apostolic  receives  faculties  without 
the  above  exceptioi^is  he  may  confer  benefices  and 
grant  dimissory  letters.  But  these  rig'hts  are  g^en- 
eralh^  reserved  from  him  in  the  letters  of  appointment. 
If  the  Holy  See  has  not  specially  reserved  these 
rig-hts  to  itself  and  still  reserved  them  from  the  vicar, 
then  they  remain,  not  with  the  vicar,  but  with  the 
bishop.  In  either  case  whether  the  Holy  See  or  the 
bishop  confers  the  benefices,  particularly  parishes, 
the  vicar  apostolic  attends  to  the  concursus  and  an- 
nounces the  more  worthy  candidate  to  the  bishop  or 
to  the  Holy  See  as  required.  It  is  the  duty  of  the 
vicar  also  to  attend  to  the  examination  of  the  candi- 
dates for  orders  in  either  case. 


CHAPTER   HI. 

APPOINTMENT   OF    VICAR    CAPITULAR    uK 
ADMINISTRATOR. 

33.  As  soon  as  an  episcopal  see  becomes  vacant  by 
the  death,  resig-nation  or  transfer  of  the  bishop,  all 
his  power,  both  ordinary  and  by  law  delegfated,  (not 
however,  that  speciall}^  deleg'ated)  devolves  on  the 
chapter  of  the  cathedral  church  and  from  it  exclu- 
sively and  irrevocably  unto  the  one  vicar  capitular 
who  must  be  chosen  by  the  said  chapter  within  eiofht 
days  from  the  time  of  certain  knowledgfe  of  a 
vacancy.  In  case  of  supposed  vacancy  the  Holy  See 
should  be  consulted,  especially  if  the  bishop  has  ap- 
pointed a  vicar  ofeneral.  Certain  knowledg-e  of  the 
vacancy  is  required,  not  merely  presumptive.  This 
certaint}^  inay  be  founded  on  the  announcement  of 
the  transfer  in  consistory  or  on  a  letter  of  the  Sacred 
Congreg^ation.  The  chapter  cannot  reserve  any 
jurisdiction  to  itself,  nor  remove  the  vicar  capitular 
once  he  is  appointed.  According*  to  the  Council  of 
Trent,  the  chapter  must  also  appoint  one  or  more 
economes  from  itself  to  administer  the  temporalities 
of  the  see  during-  the  vacanc3^  During'  the  time 
from  the  vacancy  to  the  selection  of  a  vicar  capitular, 
the  chapter,  as  a  colleg-iate  body,  has  jurisdiction 
over  the  whole  diocese. 

34.  In  the  election  of   a  vicar  capitular  the  first 

29 


30  LEGAL    FORMULARY. 

digfnitary  presides.  The  votino-  should  be  secret. 
(\S'.  Cong\  Cone,  in  Melevitana,  2^  Nov.  i6gy.  .  Mona- 
celli,  Tom.  /,  Tit.  I.  Ferraris,  verho,  Vicario  Cap. 
Art.  /,  n.  I  J.)  Pelligfrinus  says  an  open  ballot  is 
null.  A  majority  vote  will  elect,  but  this  majorit}^ 
must  be  given  at  the  time  of  the  election  when  the 
chapter  is  in  collegiate  session.  The  consent  of  in- 
dividual members  obtained  later  even  in  writing  will 
not  make  valid  an  election  with  less  than  a  majority 
vote  obtained  during  the  session.  ^Pignatellus  Tom. 
/,  Consult.  2j,  n.  y.)  The  same  author  in  Tom.  VI, 
Consult.  g2  shows  that  an  election  is  vitiated  and 
rendered  null  if  some  person  competent  for  the  office 
is  overlooked  or  rejected  from  the  number  of  can- 
didates. 

As  to  the  requisite  qualities  for  the  vicarship  the 
law  distinctly  provides  that  a  doctor  or  licentiate  in 
canon  law  or  at  least  in  theology  shall  be  chosen  and 
if  there  is  only  one  in  the  chapter  who  has  these 
qualities  he  must  be  chosen;  if  there  is  one  and  he  is 
not  chosen  the  election  is  by  that  fact  null,  {Ferraris 
I.  c.  71.  j2.)  If  there  is  none  with  these  qualities  in 
the  chapter  itself  then  some  one  outside  with  proper 
degrees  may  be  chosen.  This  holds  a  fortiori  in 
choosing  a  bishop  to  fill  the  vacancy.  The  same 
qualities  are  required  in  a  vicar  capitular  as  in  a  vicar 
general.  {Confer  Zitelli,  A-pp.  Juris,  fg-.  r6g.)  It 
should  be  noted  that  if  the  chapter  neglects  the  elec- 
tion of  a  vicar  or  defers  it  beyond  the  eight  days,  or 
if  it  elects  a  person  without  the  requisite  qualities, 
the  choice  of  the  vicar  capitular  for  that  time  devolves 
upon  the  metropolitan,  or  if  the  metropolitan  see  is 
vacant  then  upon  the  senior  suffragan.      The  chapter 


ADMINISTRATOR.  31 

may  also  otherwise  be  punished,  if  the  case  is  aggfra- 
vateci.  The  vicar  capitular  appoints  his  own  substi- 
tute in  case  of  absence.  The  chapter  has  no  author- 
ity in  the  matter.  If  it  occurs  leg'ally  that  one  not  a 
canonist  is  elected  vicar,  the  law  requires  him  at 
once  to  choose  a  cousultor  who  is  a  canonist:  but  the 
chapter  cannot  select  him. 

35.  The  power  of  the  vicar  capitular  is  j^reater 
than  that  of  the  vicar  general  of  a  bishop,  for  the 
vicar  capitular  performs  by  his  ordinary  power  most 
of  the  acts  for  which  the  vicar  general  requires  a 
special  mandate.  Thus  the  vicar  capitular  holds  a 
concursus  for  vacant  parishes,  though  he  does  not 
appoint;  after  the  lapse  of  a  year's  vacancy  he  can 
hold  a  synod  and  can  visit  the  diocese  a  year  after 
the  last  visitation.  He  can  give  dimissory  letters 
within  the  first  year  of  vacanc}^  for  tonsure  and  also 
for  orders  to  those  oblig'ed  to  receive  them;  but  he 
can  neither  admit  priests  into  the  diocese  nor  grant 
exeats,  nor,  in  a  word,  materially  change  the  condi- 
tion of  the  vacant  see.  Hence  he  cannot  confer  ben- 
efices or  parishes,  (he  appoints  temporary  adminis- 
trators) ;lheJcannot  alienate  property lor;transfer  it 
from  church  to^church  nor  begin  suits.  For  other 
information  works  on  law  should  be  consulted. 

The  authority  of  the  vicar  capitular  ceases  when 
the  new  bishop  presents  his  letters  of  appointment, 
or  when  the  H0I3'  See  provides  an  administrator  to 
govern,  either  because  of  the  long  vacancy,  strife  in 
the  chapter,  or  because  the  chapter  elected  an  unfit 
person  for  vicar.  Following  is  the  form  to  be  used 
by  the  chapter  in  appointing  its  vicar  capitular: 

"Nos,  Archidiaconus,  canonici  et  capitulum  cathe- 


32  LEGAIv   FORMULARY. 

dralis  ecclesise  N —  sede  vacante  per  mortem  bonec 
memoris  N —  E)piscopt. 

Admodura  Revdo  D.  N — ,  J.  U.  Doctor! ,  salutem 
in  Domino.  * 

Cum  ex  sacrorum  canonum  dispositione  cathedrali- 
um  ecclesiarum  capitula  in  locum  deficientium  epis- 
coporum,  (praesertim  si  ex  humanis  erJoi  contig'erit ) 
subrog"entur,  eisque  in  spiritualibus  et  temporalibus 
succedant,  eorum  munus  fit,  viduatis  ecclesiis  ita 
consulere  ut  ministrorum  solertia  atque  dilig^entia 
incommoda  minime  sentire  permittantur.  Ne  ig"itur 
supradicta  ecclesia  culpa  nostra  aiiquid  detriment! 
patiatur,  nos  canonicis  sanctionibus  et  S.  Concilii 
Trid.  decretis  ut  par  est  obtemperando,  vocatis 
omnibus  et  sino-ulis  canonicis,  intra  tempus  octo 
dierum  a  praefato  concilio  constitutum,  ad  vicariuni 
qui  vices  nostras  sustinere  debeat  deputandum,  con- 
g'reg'atisque  his  qui  debuerunt,  potuerunt  et  voluer- 
unt  interesse,  habitis  capitulariter  secretisque  suf- 
frag"iis  sive  votis  omnium  seu  majoris  partis  interes- 
sentium,  et  ut  permittitur  cong^re^-atorum,  Te  Advo- 
catuni  Reverendum  D.  N — ,  J.  U.  D.  supradictum, 
de  cujus  probitate,  scientia  et  sollicitudine  pluri- 
mum  in  Domino  conlidimus,  Generalem  in  spirituali- 
bus et  temporalibus  Vicarium  nostrum  in  praedicta 
ecclesia  cathedrali,  civitate  et  dioecesi  tenore  pra?- 
sentium  deputamus,  facimus,  creamus  et  constitui- 
mus  pro  tempore  sedis  vacantis;  cum  omnibus  et 
sing*ulis  facultatibus,  privileg"iis,  honoribus,  oneribus, 
emolumentis,  praeeminentiis  et  praerogativis  ad 
hujusmodi  munus  exercendum  debitis,  necessariis  et 
opportunis. 

Dantes  Tibi  plenam  et  liberam  potestatem  omnia 
et  singula  exercendi,  quae  capitulo  sede  vacante  in 
utroque  foro  a  jure  perraittuntur,  et  proinde  causas 
omnes  tam  civiles  quam  criminales  et  mixtas  etiam 
liseresis  et  matrimoniales  'audiendi,  cognoscendi, 
terminandi  ac  decidendi  cum  facultate  excommunica- 
tionem    aliasque    ecclesiasticas    censuras    et     prjenas 


ADMINISTRATOR.  33 

etiam  pro  ecclesianim  immunitate  et  libertate  tuenda, 
ferendi  et  inflio'endi,  resi<^"nationes  beiieficiorum  cum 
causa  recipiendi  (et  prssentatos  ad  beneficia  juris- 
patronatus,  si  qua3  sint,  instituendi):  concursus  ad 
parochiales  vacantes  indicendi  et  niag^is  dig-num  ex 
approbatis  eliofendi,  ac  dimissorias  ad  ordines  post 
annum,  et  infra  annum  coarctatis  ad  formam  Cone. 
Trid.  concedendi,  et  super  interstitiis  dispensandi; 
necnon  ea  omnia  faciendi,  mandandi  et  exequendi 
quas  nos  facere,  mandare  vei  exequi  possumus,  etiamsi 
requirerent  speciale  mandatum,  (si  vicarius  deputatus 
non  esset  doctor,  addatur)  cum  voto  tamen  consultoris 
idonei  J.  U.  Doctoris,  Tibi  benevisi  in  sententiando 
et  procedendo  ad  actus  quoscunque  irrevocabiles  et 
qui  consilio  videbuntur  indig^ere. 

Prascipimus  itaque  universo  clero  hujus  civitatis 
et  dioecesis,  aliisque  hujus  ecclesia?  jurisdiction!  sub- 
jectis,  ut  Te  in  Vicarium  nostrum  Generalem. 
ut  pra^mittitur,  recipiant,  Tibique  tanquam  tali  in 
omnibus  pareant  et  obediant:  dantes  Tibi  voces  et 
vices  nostras,  contradictores  et  rebelles  poenis  et 
censuris  ecclesiasticis  compescendi .  In  quorum  iidem 
prssentes  scribi  jussimus  per  inlrascriptum  nostra; 
curias  notarium,  et  manu  propria  subscripsimus,  sig"- 
illoque  capituli  jussimus  muniri.     Datum.      &c." 

The  document  is  to  be  sig-ned  b}^  all  the  chapter 
and  witnessed  by  the  notar}^ 

36.  In  dioceses  where  there  are  no  cathedral  chap- 
ters the  Holy  See  appoints  an  administrator  to 
govern  during  the  vacancy.  But  provision  is  made 
meanwhile  in  order  that  jurisdiction  may  not  lapse. 
According  to  the  Second  Plenary  Council  of  Balti- 
more n.  96-99,  which  is  still  in  force,  every  bishop 
can  communicate  to  his  priests  certain  faculties 
which  he  receives  from  the  Holy  See.     These  are  the 

Facul-tates  Ordinaria^  ^orni   I,  and   in  the  provinces 
6 


34  LEGAL    FORMULARY. 

of  Baltimore  and  Philadelphia,  part  of  the  E^xtraor- 
dinary  Faculties  C;  not  those  requirinof  episcopal 
character.  The  bishop  is  instructed  to  appoint  some 
priest  of  his  diocese  as  administrator  with  these  fac- 
ulties, so  that  pending-  the  vacancy  caused  by  death 
he  ma}^  take  the  place  of  the  bishop  until  the  Holy 
See  shall  dispose  otherwise.  The  one  appointed  ad- 
ministrator is  oblig-ed,  as  soon  as  possible,  to  inform 
the  Holy  See  reg^arding-  the  death  of  the  bishop  and 
his  own  appointment.  The  appointment  of  the  ad- 
ministrator by  the  bishop  is  only  provisional,  i.  e. 
until  the  Holy  See  provides.  As  much  as  possible 
the  administrator  should  be  possessed  of  the  qualities, 
required  in  a  vicar  capitular.  If  recourse  is  had  to 
Rome  ag'ainst  the  bishop's  appointee  and  g-ood  rea- 
sons g-iven  ag'ainst  him  the  matter  will  receive  proper 
attention.  Usually  when  the  Sacred  Propag'anda 
confirms  the  appointment  a  letter  of  instruction  is 
also  sent.  It  should  be  noted  that  the  usual  extraor- 
dinary faculties  received  by  the  bishop  do  not  now 
lapse  with  his  death.      {^Cf.  -p.  241 .  below.) 

37.  Should  the  bishop  have  omitted  to  appoint  in 
writing-  an  administrator,  the  metropolitan,  or  the 
senior  suffrag-an  if  the  metropolitan  see  is  concerned, 
will  appoint  an  administrator  provisionally.  When 
a  see  becomes  vacant  by  the  resig'nation  or  the  trans- 
fer of  the  bishop,  the  Propag'anda  when  announcing" 
such  an  event  usually  also  makes  provision  reg-arding* 
an  administrator.  However,  if  none  is  made  then 
the  metropolitan,  or  the  senior  suffrag"an  as  above, 
makes  a  provisional  appointment.  It  is  worthy  of 
note  that  the  schema  of  the  Vatican  Council  intended 
that  where  there  are  no  chapters  the  vicar  gfeneral 


ADMINISTRATOR.  35 

of  the  late  bishop  should  succeed  ipso  facto  to  the 
administratorship  as  vicar  capitular;  but  only  pro- 
visionally until  the  Holy  See  should  provide.  This 
is  the  pontifical  provision  for  missionary  countries 
which  have  no  special  law  on  the  subject.  It  is  cer- 
tain that  the  administrator  for  validity  must  be  ap- 
pointed in  writino-.  No  priest  of  the  diocese  need 
recoofnize  an  oral  appointment.  The  appointment 
should  also  be  made  known  throug'h  the  reofular 
channels.  As  a  matter  of  prudence  the  bishop  ma}^ 
draw  up  the  appointment  at  any  time,  and,  if  neces- 
sary, from  time  to  time  he  may  chano*e  it  like  his 
last  will.  But  to  preclude  complications  the  appoint- 
ment should  be  published  before  the  bishop's  death. 
It  is  not  a  question  of  the  last  will  of  the  bishop,  but 
of  jurisdiction  which  ceases  with  death.  If  the  un- 
published appointment  were  disputed  when  made 
known  after  death,  serious  complications  mig-ht  arise. 
The  authority  to  adjust  the  matter  is  respectively 
the  metropolitan  or  the  senior  suffraofan. 

38.  The  administrator  cannot  chang-e  the  condition 
of  the  diocese,  cannot  admit  or  excardinate  priests, 
cannot  appoint  to  parishes,  except  provisionally,  nor 
encumber  with  debts  nor  alienate  church  propert3\ 
He  has  the  usual  powers  and  faculties  of  a  vicar 
capitular,  besides  the  unexpired  faculties  of  the  late 
bishop,  except  only  the  personal  ones.  It  is  worthy 
of  special  note  that  if  an  administrator  needs  imme- 
diately some  extraordinary  faculty  such  as  those  of 
Forms  D  and  E,  he  can  obtain  it  by  applyincr  to  the 
Apostolic  Delegation  in  Washing-ton.  The  Deleg-a- 
tion  has  for  use  in  necessary  circumstances  all  the  ex- 
traordinary faculties  gfiven   by  the   Holv  See   to  the 


36  EvEGAL    FORMULARY. 

bishops  of  the  United  States.  The  following-  form 
may  be  used  by  the  bishop  in  appointing"  an  admin- 
istrator: . 

"N — Dei  et  Apostolical  Sedis  ^^jfratia  Episcopus  N. 
Dilecto  Nobis  in  Christo  N.  N.  salutem  in  Domino. 

Cum  ex  mente  Sanctae  Sedis  et  Secundi  Plenarii 
Concilii  Baltimorensis  decretis  oporteat  Episcopuni 
moriturum  su^  dioecesi  ita  consulere  ut  jurisdictio  in 
spiritualibus  et  temporalibus  ad  reg"imen  ecclesia? 
necessaria  in  aliquo  sacerdote  idoneo  remaneat,  qui 
post  obitum  episcopi  eam  exerceat;  Nos,  iofitur,  me- 
mores  conditionis  nostrae  infirmai,  supradictis  pra^- 
scriptis  obteniperantes,  Te,  de  cujus  scientia,  probi- 
tate,  solicitudine  et  fidelitate  plurimum  in  Domino 
confidimus,  administratorem  in  spiritualibus  et  tem- 
poralibus in  praedicta  N —  ecclesia  cathedrali,  civi- 
tate  et  dioecesi  tenore  praesentium  deputamus,  faci- 
mus,  creamus,  et  constituimus,  donee  Apostolica 
Sedes,  certior  facta,  alio  modo  provideat;  cum  omni- 
bus et  sinsfulis  facultatibus,  privilegfiis,  honoribus, 
oneribus,  emolumentis,  praeeminentiis  et  praerog^ativis 
ad  hujusmodi  munus  exercendum  debitis,  solitis,  nec- 
essariis  et  opportunis. 

In  quorum  fidem  praesentes  scribi  jussimus  per  in- 
frascriptum  nostrae  curiae  notarium  et  manu  propria 
subscripsimus  sig^illoque  nostro  muniri  jussimus. 
Datum  &c. 

N.  N.  Notarius.         [l.  s.]        N.  Episcopus  N." 


CHAPTER  IV. 

APPOINTMENT  OF  CANONS  AND  CONSULTORS. 

39.  E^very  bishop,  even  while  the  Apostles  were 
alive,  g-athered  around  himself  a  clerg-y  to  help  in 
his  sacred  work.  This  body,  during-  the  first  three 
centuries,  nearly  everywhere  consisted  of  twelve 
priests  and  seven  deacons,  the  priests  to  sig-nify  the 
twelve  apostles,  the  deacons  to  represent  the  seven 
deacons  mentioned  in  the  Acts  of  the  Apostles. 
These  twelve  priests  and  seven  deacons  constituted 
the  senate  of  the  church  or  diocese  and  the  council  of 
the  bishop.  Sub-deacons  and  inferior  ministers  were 
attached  to  this  body  for  service  and  from  them  the 
deacons  and  priests  were  chosen  to  fill  vacancies, 
thouofh  until  chosen  they  belong-ed  not  to  the  senate 
or  council.  {Conf.  Bouix,  Dc  Cafitulis,  page  ,\) 
Without  this  senate,  the  Fourth  Council  of  Carthag-e, 
Canon  23  says,  no  bishop  should  decide  any  import- 
ant matter,  otherwise  his  sentence  would  be  null. 
During-  the  first  five  centuries,  according-  to  Tomas- 
sin.  Vet.  et  Nov.  Ecc.  Disc.  Pars  /,  lib.  j,  c.  7,  there 
was  no  common  life  among-  the  clergy  of  the  cathe- 
dral, but  nevertheless  they  formed  with  the  bishop 
one  body  and  participated  with  him  in  the  care  of  the 
diocese.  To  this  body  of  clerg-y  succeeded  cathedral 
chapters,  or  the  college  of  canons  belonging-  to  the 
cathedral. 


38  IvEGAIv    FORMULARY. 

40.  Chapters  are  defined:  Colleo-es  of  clerics  who, 
established  under  a  prelate,  make  one  body  and  are 
devoted  by  the  church  to  public  divine  worship. 
Chapters  are  either  cathedral  or  colleg*iate.  Cathe- 
dral chapters  are  those  established  in  a  church  to 
which  the  bishop's  see  is  affixed,  for  the  purpose  of 
assisting-  the  bishop  in  the  government  of  his  diocese 
and  supplyino*  his  place  durini^  a  vacancy  in  the  see. 
{Cf.  ConciL  Trid.  scss.  2^,  c.  12,  /j,  de  ref.)  Col- 
leg'iate  chapters  are  those  established  in  other  than 
cathedral  churches,  and  hence  they  have  no  part 
whatever  in  the  administration  of  the  diocese. 
Chapters  in  our  day  can  be  established  only  by  the 
Pope  whether  they  be  cathedral  or  only  collegiate. 
Bishops  have  not  the  power  according-  to  all  canonists. 

41.  A  canonry  is  defined:  A  spiritual  rig-ht 
which  comes  from  an  election  or  reception  of  a  per- 
son as  a  canon.  This  rig-ht  consists,  firstW,  in  en- 
titling- the  canon  to  a  seat  or  stall  in  the  choir  and  a 
voice  in  the  chapter-meeting;  secondly,  in  entitling- 
hini  to  a  prebend  or  portion  of  .the  canonical  rev- 
enues as  soon  as  possible.  A  prebend,  therefore, 
conve3^s  more  than  a  canonry.  A  prebendary  is  a 
canon  or  member  of  a  chapter  who  besides  the 
other  rig-hts  of  a  canon  receives  an  annual  support 
throug-h  such  office.  Formerly  the  bishop  and  his 
chapter  in  common  received  and  partook  of  the  rev- 
enues of  the  church;  but  later  a  division  was  made 
between  the  bishop  and  the  chapter,  and  a  portion 
of  the  chapter  revenues  was  assig-ned  to  individual 
canons,  which  portion  was  called  a  prebend.  A 
prebend  is  considered  in  law  more  honorable  than  a 
chaplaincy  or  beneficial  cure,    and   hence  in    odious 


CATHEDRAT,    CHAPTER.  39 

matters  a  caaonry  or  prebend  does  not  come  under 
the  name  of  benefice,  but  in  favorable  matters  both 
are  included. 

42.  The  bishop  is  to  provide  that  the  canons  have 
prebends  sufficient  for  their  support.  Hence,  in  the 
months  not  reserved  to  the  Holy  See,  with  the  con- 
sent of  the  chapter,  the  bishop  can  unite  simple  ben- 
efices to  a  poor  and  insufficient  prebend.  A  benefice 
in  g^eneral  is  defined:  A  perpetual  right  of  receiv- 
ing income  from  the  goods  of  the  church  on  account 
of  some  spiritual  dut}^  authorized  by  the  church  and 
to  be  personally  performed.  A  simple  benefice  is 
one  to  v^diich  the  care  of  souls  is  not  attached,  nor 
any  jurisdiction,  precedence  or  administration.  Such 
would  be  the  obligation  of  sa3^ing  mass  twice  a  week 
for  a  certain  intention  and  receiving  therefor  the  in- 
come of  a  certain  property  set  apart  by  church  au- 
thorit}^  for  that  purpose.  Such  a  simple  benefice 
might  be  united  to  a  cathedral  prebend  to  make  its 
revenues  sufficient  for  the  support  of  the  canon  pre- 
bendary. But  besides  prebends  a  third  part  of  the 
chapter  revenues  is  set  apart  for  daily  distribution 
to  all  the  canons,  whether  they  have  prebends  or 
not,  for  attendance  at  choir.  The  bishop  is  to  de- 
termine how^  this  distribution  shall  be  made.  (C  onj . 
Co??.   Trid.  sess,  21,  cap.  j,  dc  rcf.) 

43.  If  the  cathedral  chapter  is  considered  as  the 
senate  and  born  council  of  the  bishop,  undoubtedly 
the  bishop  is  its  head  and  most  noble  part;  but  il 
considered  as  a  corporate  bod\',  having  its  own  rights 
and  duties,  the  bishop  is  neither  head  nor  part  of  it. 
Its  head  is  then  its  chief  canon,  generally  to-day  the 
First  Dicrnitarv.     If  the  vicar  o-eneral  is  also  a  canon 


40  .  LEGAL    FORMULARY. 

he  belongfs  to  the  chapter,  otherwise  not.  In  choir, 
he  takes  his  place  as  a  canon,  not  havinio;-  precedence 
because  of  the  vicarship.  The  number  of  canons  in 
cathedral  churches  is  not  determined  by  law,  but 
depends  on  the  judg-ment  of  the  Pope,  although  at 
least  three  are  required  for  the  establishment  and 
two  for  the  continuance  of  the  chapter.  If  the  num- 
ber of  canons  has  been  precisely  determined,  either 
b}'  the  Pope,  immemorable  custom,  or  by  the  bishop 
and  chapter  under  oath  not  to  increase  the  number, 
then  the  number  can  be  increased  only  by  the  Pope. 
Outside  of  these  cases  the  bishop  with  the  chapter 
can  increase  the  number  if  sufficient  support  is 
provided. 

A  canon  once  appointed  is  irremovable  by  law; 
hence  if  unwilling"  he  cannot  be  removed  except  b}^ 
judicial  sentence  after  canonical  trial. 

44.  As  a  rule  to-day  the  digfnitaries  of  a  cathedral 
also  belong-  to  its  chapter.  Formerly  the}'  did  not, 
although  the}"  had  precedence  of  the  canons. 
Whether  or  not  they  are  members  of  the  chapter 
to-day  depends  on  their  institution.  A  dignity 
formerly  was  defined  a  beneficial  title  having  an- 
nexed jurisdiction  and  precedence.  To-day,  while 
jurisdiction  has  been  withdrawn,  nevertheless  w^hat 
offices  formerlv  were  dio-nities  still  retain  the  name 
and  precedence.  Such  are  the  arch-deaconate  and 
the  arch-presbyterate.  By  law,,  then,  the  arch-dea- 
con, the  arch-priest,  and  also  the  head  of  the  chapter, 
whether  he  is  called  the  dean  or  by  some  other  name, 
are  dig-nitaries.  Often  the  arch-deacon  is  also  dean 
of  the  chapter.  Anyone  else  in  the  chapter  claiming" 
dig'nity   must  make  proof  of  it.      These  dignitaries 


CATHEDRAL    CHAPTER  41 

always  take  precedence  in  choir,  in  processions  and 
other  acts  out  of  chapter  meeting*;  if  they  belong-  to 
the  chapter  they  precede  also  in  capitular  acts. 
The  arch-deacon  is  the  first  dig-nitary,  and  once  ap- 
pointed is  irremovable,  althoug-h  in  the  province  of 
Rheims  in  France  by  special  concession  of  the  Holy 
See  vicars  g*eneral  who  are  removable  are  called 
arch-deacons.  {CoJifer  Craisson^  Maniiale,  7i.  iigy.) 
The  same  qualifications  as  to  birth,  university  de- 
g-ree,  morals,  are  required  in  these  dig-nitaries  as  in 
a  vicar  g-eneral.  Usually  in  every  cathedral  chapter 
there  are  prebends  for  a  canon  theolog'ian,  who 
teaches  Holy  Scripture,  for  a  canon  penitentiary  who 
hears  confessions,  and  for  other  officers,  none  of 
whom,  however,  have  precedence. 

45.  According^  to  the  fourth  rule  of  the  apostolic 
chancery  the  first  dig-nity  of  all  cathedral  churches 
is  reserved  to  the  Pope.  In  some  countries,  as  in 
France,  this  rigfht  is  not  enforced,  as  is  apparent 
from  the  councils  of  Avignon  and  Rheims  held  in 
1849,  in  which  the  bishops  are  said  to  confer  also 
the  first  dignity  of  their  cathedral  churches.  It  is 
considered  certain  to-day  that  the  conferring-  of 
canonries  and  prebends  in  cathedral  churches  regfu- 
larly  pertains  to  the  bishop  and  the  chapter  together. 
{Confer  Bouix\  De  Ca-pihdis,  fag-e  224..)  B3'  common 
law  the  right  of  choosing  canons  in  a  collegiate 
church  belongs  to  its  chapter,  the  institution  of  the 
canons  depending  on  the  bishop.  However,  much 
depends  on  custom  and  the  statutes  of  individual 
chapters,  which,  together  with  approved  authors, 
should  be  consulted  also  regarding  the  various  rights 
and  duties  of  the  canons.     Since  the  council  of  Trent 


42  LEGAL   FORMULARY. 

the  bishop  appoints  the  vicar  who  has  charge  of  the 
parish  work  of  the  cathedral  even  thoug-h  the  cathe- 
dral has  a  chapter.  The  same  is  often  true  also  of 
the  canon  theologfian  and  the  canon  penitentiary. 

46.  When  properly  appointed  the  appointee  must 
take  possession  of  his  canonry  or  dig^nity  in  a  capitu- 
lar manner,  that  is,  the  chapter  must  be  called  to- 
gether by  the  sound  of  the  bell,  and  the  newly  ap- 
pointed must  in  the  presence  of  the  chapter  take  his 
proper  seat  or  stall.  Otherwise  he  is  not  in  legal 
possession.  {^Confer  Ferraris^  Canonicatus,  Art.  II, 
75. )  Further  it  is  required  that  the  canon  within 
two  months  make  a  profession  of  faith  and  promise 
upon  oath  obedience  to  the  church  of  Rome.  This 
profession  and  oath  are  to  be  taken  before  the  bishop 
or  his  vicar  general,  and  also  must  be  repeated  in 
the  chapter.  (^Coiifer  Cone.  Trid.  Sess.  2^,  c.  12, 
de  re/.)  This  profession  and  oath  must  be  made 
personally  not  by  procurator.  Its  omission  deprives 
the  appointee  of  all  the  revenues  of  his  canonry,  but 
not  of  other  rights,  provided  he  has  taken  possession 
legally.  The  mere  appointment,  even  if  publicly 
known,  will  not  suffice. 

No  special  form  is  required,  either  by  canon  la^v  or 
the  council  of  Trent  for  conferring  the  theological 
and  penitentiary  prebend,  but  in  Italy  and  the  adja- 
cent islands  by  order  of  Pope  Benedict  XIII  both  are 
given  through  concursus.  The  canon  theologian 
must  be  a  master  in  theology,  and  the  canon  peni- 
tentiary a  doctor  or  licentiate  in  theology  or  canon 
law,  and  at  least  forty  years  of  age  unless  necessity 
or  utility  demands  a  younger  man. 

47.  The  Sacred  Congregation  of  the  Propaganda, 


DIOCESAN    CONSULTORS.  43 

according-  to  Zitelli  Appar.  Juris  Ecc.  fage  i^8,  has 
not  ceased  admonishing'  the  bishops  subject  to  its 
jurisdiction  to  establish  cathedral  chapters.  And  if 
the  circumstances  of  times  and  places  render  this 
impossible  it  insists  on  at  least  the  establishment  of 
a  council  to  take  the  place  of  the  chapter  temporarily. 

The  Third  Plenary  Council  of  Baltimore,  while 
claiming-  that  the  present  state  of  affairs  would  not 
permit  the  establishment  of  chapters,  decreed  in 
their  place  certain  diocesan  cousultors.  Six  or  at 
least  four  priests  noted  for  pie|y,  integ^rity,  zeal  for 
souls,  kuowledg-e,  prudence,  experience  and  observ- 
ance of  law,  are  to  be  chosen  by  each  bishop  as  dio- 
cesan consultors.  One-half  of  these  the  bishop  him- 
self chooses.  He  also  chooses  the  other  half,  but 
only  after  the  priests  of  the  diocese  have  each  sug"- 
g'ested  nine  names,  or  three  for  each  position.  It  is 
easily  seen  that  such  a  proposition  by  the  clerg-y  is 
entirely  nug-atory,  for  according-  to  the  Council,  n. 
19,  the  bishop  would  thus  have  any  number  of  names 
to  choose  from  and  is  not  confined  to  those  receiving- 
the  hig-hest  vote,  nor  in  fact  is  he  precluded  from 
selecting-  a  man  who  received  but  one  vote.  This 
proposition  by  the  clerg-y  is  rendered  even  more  nug-- 
atory  when  a  vote  is  taken  not  in  synod  but  by  let- 
ters sent  by  the  individual  priests  to  the  bishop's 
office.  While  it  mig-ht  have  been  intended  that  a 
vote  should  be  taken  in  synod  and  that  the  bishop 
should  recog-nize  the  wish  of  the  clerg-y  by  selecting- 
those  three  for  consultors  for  whom  most  priests  had 
voted,  still  practice  has  developed  something-  very 
different. 

The  term  for  which  consultors  are  chosen  is  three 


44  LEGAL    FORMULARY. 

years,  not  during"  life.  This  short  term  also  has 
proved  detrimental,  and  the  experience  of  the  four- 
teen years  elapsed  since  the  council  has  shown  that 
in  most  dioceses  the  establishment  of  consultors  has 
by  no  means  satisfied  the  want  of  cathedral  chapters. 
Moreover,  is  not  the  church  in  the  United  States  in 
much  better  condition  than  in  England  and  other 
countries,  where  nevertheless  cathedral  chapters  are 
found? 

48.  The  consultors  are  chosen  ad  triennium^  for 
three  years,  and  therefore  their  term  expires  by  lim- 
itation -exactly  three  years  from  the  date  of  their 
apppointment.  The  law  itself  confirms  this  by  mak- 
ing* one  exception:  "In  case  the  three  years'  term 
happens  to  expire  during-  a  vacancy  in  the  episcopal 
see,  then  the  consultors  will  remain  in  office  until  the 
advent  of  the  new  bishop,  who  within  six  months 
from  his  consecration  is  oblig^ed  to  select  new  con- 
sultors." (No.  21.)  Pending- a  vacancy,  the  admin- 
istrator will  use  the  council  as  should  the  bishop  of 
the  diocese. 

During"  his  term  of  office  a  consultor  is  irremovable 
except  for  cause;  and  if  justly  removed  his  place  is  to 
be  filled  by  the  bishop  with  the  advice  of  the  other 
consultors.  The  defect  of  the  law  as  to  the  practical 
efficiencv  of  the  consultor  seems  to  be,  that  if  out- 
spoken  in  meeting-  or  opposed  to  some  imprudent  or 
illegal  act  of  the  bishop,  the  consultor  can  be 
dropped  at  the  expiration  of  his  term;  thereby  de- 
feating- one  of  the  chief  objects  intended  by  estab- 
lishing- cathedral  chapters. 

49.  As  a  vicar  general  may  be  a  member  of  the 
cathedral  chapter,  so  also  it  seems  he  may  be  a  diocesan 


DIOCESAN    CONSUTvTORS.  4:^ 

consultor.  It  is  true  he  is  the  consultor  natus  of  the 
bishop  and  forms  one  tribunal  with  him;  but  this 
does  not  seem  to  render  the  two  positions  incompati- 
ble. In  fact  in  1886  the  Sacred  Propag-anda  replied 
to  an  inquiry  that  "vicars  oreneral  may  be  consultors, 
provided  they  are  in  a  minority,  i.  e.,  if  there  are  two 
vicars  g^eneral  there  must  be  at  least  three  other 
priests  consultors."     {See  note  p.  50  below.) 

The  consultors  will  meet  at  the  call  of  the  bishop, 
who  according-  to  the  law  will  summon  them  four  times 
or  at  least  twice  a  year  at  stated  times  and  also  when- 
ever business  requires  special  meetings.  The  advice 
of  the  consultors  must  be  g"iven  as  a  body,  collegia- 
liter^  and,  whenever  the  consultors  so  wish,  even  by 
secret  vote.  Every  consultor  must  be  summoned  to 
the  meeting-.  Proper  records  of  the  business  trans- 
acted should  also  be  kept,  for  which  purpose  one  of 
the  consultors  should  be  appointed  secretary  to  the 
body.  Neither  should  any  but  the  consultors  be 
present  at  their  meeting^s,  as  is  the  rule  for  chapters. 
An  illegally  appointed  consultor  is  not  competent; 
and,  because  of  their  position  in  the  diocese  and  the 
necessity  of  obtaining-  their  consent  in  certain  busi- 
ness matters,  it  is  certain  that  their  appointment 
must  officially  be  made  known  to  the  clerg-y  of  the 
diocese.  Each  consultor,  as  in  the  case  of  canons, 
must  make  a  profession  of  faith,  or  at  least  take  the 
oath  of  office  required  of  everyone  in  public  office  in 
the  church.  If  the  proposition  of  names  was  made 
by  the  clerg-y  throug'h  letters,  the  choice  of  the 
bishop  should  be  made  known  in  a  similar  way. 
The  mere  publication  of  names  in  a  directory,  issued 
outside  the  diocese,  cannot  in  law  be  considered  an 


46  LEGAIv    FORMULARY. 

ofi&cial  publication  to  the  clerg^y,  especially  since 
there  is  no  official  directory,  and  no  bishop  has  juris- 
diction outside  his  own  diocese. 

50.  Before  undertaking*  certain  things  the  bishop 
is  by  law  oblig^ed  to  ask  the  advice  of  the  diocesan 
consultors,  not  by  interviewing  them  individually 
or  by  asking-  the  opinion  of  several  whom  he 
prefers,  but  by  calling"  them  to  meet  and  give  advice 
as  a  body,  collegialiter.  The  matters  for  which 
such  advice  is  necessary  are:  The  calling  of  a  dio- 
cesan synod;  the  dividing  of  a  parish;  the  g^iving  a 
parish  to  a  religious  community;  the  appointment  of 
regents  for  the  seminary;  the  election  of  a  new  con- 
suitor  and  synodal  examiners;  the  alienation  or  mort- 
gaging or  permitting  indebtedness  on  church  prop- 
erty to  any  amount  over  $50  {Cf.  p.  288)\  the  impo- 
sition of  a  new  tax  on  the  diocese  for  the  bishop. 
The  consultors  in  meeting-  with  the  irremovable  rec- 
tors of  the  diocese,  also  have  each  a  vote  in  proposing- 
names  for  a  new  bishop  when  the  see  has  become 
vacant.  The  consultors  and  the  irremovable  rectors 
take  precedence  of  all  the  other  priests  of  the  diocese 
except  the  vicar  general  and  Roman  prelates;  but 
none  of  them  should  be  entitled  "Very  Reverend." 
When  there  is  a  cathedral  chapter  it  ranks  immedi- 
ately after  the  vicar  general. 

51.  Following  is  a  form  for  appointing  a  canon 
when  the  appointment  rests  solely   with  the  bishop: 

"N~  Episcopus  N—  Dilecto  U.  J.  Doctori  N— 
familiari  clerico  nostro  loci  N — ,   salutem  in  Domino. 

Grata  f  amiliaritatis  obsequia,  quae  Nobis  hactenus 
impendist;  et  adhuc  solicitis  studiis  impendere  non 
desistis,  necnon  litterarum  scientia,   vitae  ac  morum 


DIOCESAN   CONSULTORS.  47 

honestas,  aliaque  laudabilia  probitatis  et  virtutum 
raerita  quibus  personam  tuam  juvari  percipimus,  Nos 
inducunt,  ut  Tibi  ad  gratias  reddamur  liberales. 
Cum  itaque  canonicatus  et  praebenda  nostra  cathe- 
dralis  ecclesiae  N — quorum  collatio,  provlsio  et  omni- 
moda  dispositio  ad  Nos  (hac  vice,  vel  ommittitur  si 
praibendffiomnes  ad  episcopum  pertinent  disponendae) 
spectare  diofnoscuntur;  et  quos  quondam  N.  N., 
qui  extra  Romanam  curiam  de  mense  N —  diem 
clausit  extremum,  possedebat,  vacaverint  et  vacent 
ad  prsesens:  Nos  volentes  Tibi  praemissorum  obsequi- 
orum  et  idoneitatis  intuitu  ofratiam  facere  specialem. 
canonicatum  et  prsbendam  pra^dictos  sicut  praemit- 
titur  vacantes  cum  plenitudine  juris  canonici  ac  om- 
nibus suis  fructibus,  proventibus,  juribus  et  perti- 
nentiis  universis,  Tibi  auctoritate  ordinaria  tenore 
praesentium  conferimus  et  de  iisdem  providemus. 
Teque  coram  Nobis  personaliter  constitutum  per 
(anuli  traditionem  et)  bireti  capiti  tuo  impositionem 
investimus,  et  realem,  corporalem  et  actualem  pos- 
sessionem auctoritate  nostra  per  N.  N.  cui  vices  nos- 
tras committimus  immitti  mandamus:  amoto  quolibet 
alio  illicito  detentore,  recepto  prius  per  Nos  et  per 
Te  praestito  ad  sancta  Dei  evang-elia  corporal!  jura- 
mento,  quod  Nobis  et  successoribus  nostris  episcopis 
obediens  eris  et  fidelis  sanctae  Matri  Ecclesis; 
eisdemque  canonicatui  et  prcebendae  ac  ipsi  ecclesi^ 
cathedrali  secundum  ipsius  statuta,  laudabiles  consue- 
tudines  et  ordinationes  deservies  et  deservire  facies 
in  divinis,  juraque  et  libertates  prsedictorum  manu- 
tenebis  et  pro  posse  defendes,  nihilque  quod  ad  dic- 
tum canonicatum  et  praibendam  pertinet  alienabis. 
sed  alienata  et  distracta  ad  jus  et  proprietatem 
eorundem  reduces  et  pro  viribus  reduci  procurabis. 
Quo  circa  mandamus-omnibus  Dig'nitatibus  et  canon- 
icis  Reverendi  Citpituli,  ut  Te  in  fratrem  et  concan- 
onicum  recipiant  et  stallum  in  choro  locumque  et 
vocem  in  capitulo  tradant  et  assig^neut,  Teque  in 
talem   habeant,  tractent  et   portionem  de  redditibus 


48  r^EGAL    FORMULARY. 

universis,  prout  habent  alii  cauonici,  faciant  Tibi  re- 
sponderi;  emissatamenprius  per  Teipsum  professione 
fidei  coram  Nobis  aut  vicario  nostro  orenerali  et  postea 
coram  capitulo.  Et  ita  conferimus,  providemus,  et 
asstg"namus  ac  exequi  mandamus  omni   quo    meliori 

raodo.     Datum^ 

[iv.  s.]  N.  E^piscopus  N. 

N.  Cancellarius  Kpiscopalis." 

52.  If  a  canon r}'  (or  parish)  has  been  reserved  to 
the  Holy  See  or  if  the  fourth  rule  of  the  Apostolic 
Chancery  is  observed,  the  bishop  who  confers  the 
benefice  may  use  the  following-  form: 

"N:  Episcopus  N.     Dilecto  &c. 

Cum  per  te  Nobis  pr^sentata  fuerint  litterse 
Apostolicae  Sanctissimi  in  Christo  Patris  et  D.  Nostri 

Divina    Providentia  Papae ,    in    perg^amena 

scriptae  cum  plumbo  pendenti,  cordula  canapis  more 
Romans  Curiae,  quas  Nos,  qua  decet  reverentia, 
recepimus,  tenoris  sequentis,  videlicet  (et  hie  insera- 
tur  tenor  Bullae)  et  successive  Nobis  instantiara 
feceris  ut  ad  ipsarum  litterarum  executionem  proce- 
deremus;  Nos  volentes  mandata  Apostolica  exequi 
juxta  formam  in  dictis  litteris  praescriptam,  de  ex- 
positis  et  contentis  in  eis  debitam  capi  mandavimus 
informationem,  qua  dilig*entercapta,  etconsti to  Nobis 
leg"itime  ex  actis  narrata  Sanctissimo  Domino  Nostro 
esse  vera  et  verificata,  teque  esse  habilem  et  idoneum 
ad  dictum  canonicatum  et  praebendam  (vel  parochiamj 
prout  idoneus  (et  diofnus)  repertus  fuisti  a  nostris 
examinatoribus  (additur  synodalibus  si  beneficium 
sit  cum  cura  aniniarum,  et  inseritur  "di§*nus"); 
proinde  dictum  canonicatum  et  praebendam  (vel  paro- 
chiam)  ut  supra  vacantes  tenore  praesentium  auctor- 
itate  Apostolica,  qua  in  his  funo-imur,  cum  omnibus 
suis  fructibus,  proventibus,  emolumentis  et  distribu- 
tionibus  ac  annexis  tibi  conferimus  et  assig^namus, 
amoto  quolibet   alio  illicito  detentore,  quem  amotum 


DIOCESAX    COXSULTORS.  49 

esse  praedicta  Apostolica  auctoritate  per   praesentes 
decernimus,    recepto    et    per    te    praestito    corporali 
juramento  &c  (et  sequere  ut  in  pra;^cedenti  formula. 
Iti  quorum  &c. 

[l.  s.]  N.  Episcopus  N. 

N.  Cancellarius  Episcopalis." 

53.  Ill  appointitio-  a  diocesan  consultor  the  follow- 
ing" form  may  be  used: 

'*N —  Episcopus  N — .  Dilecto  Nobis  in  Christo 
N.  N.      rS.  T.  D.  vel  alias;  salutem  in  Domino. 

Quum  rerum  conditiones  in  quibus  dioecesis  nostra 
praesenti  versatur  tempore,  cathedrale  capitulum 
fieri  non  sinant,  necessitati  huic  alio  quo  meliori 
modo  possimus,  satisfacere  opportet  Nos  conemur. 
Itaque  decretis  Concilii  III  Plenarii  Baltimorensis 
obtemperantes,  post  propositionem  nominum  a  clero 
dioecesano  factam  in  scriptis  (et  in  synodo),  Te  de 
cujus  pietate,  morum  integ-ritate,  sollicitudine  pro 
animarum  salute,  doctrina,  prudentia,  rerum  homi- 
nunique  experientia,  necnon  sacrorum  canonum  et 
dioecesanorum  statutorum  observantia  plurimum  in 
Domino  confidimus,  in  dioecesanum  consultorem  cum 
omnibus  juribus  et  oneribus  in  praefato  Concilio  de- 
terminatis,  sine  tamen  quacumque  mercede  ex  hoc 
capite  percipienda,  ad  trennium  auctoritate  nostra 
ordinaria  tenore  preesentium  nominamus,  constitui- 
mus,  facimus  et  deputamus.  Teque  coram  nobis 
personaliter  constitutum  per  bireti  capiti  tuo  impos- 
itionem  investimus  et  in  actualem  possessionem 
ofiBcii  consultoris  immittimus;  recepto  prius  per  Nos 
et  per  te  praestito  ad  sancta  Dei  evano-elia  corporali 
juramento,  quod  Nobis  et  successoribus  nostris 
episcopis  obediens  eris  et  fidelis,  et  sanctae  matri 
ecclesi^;  et  ipsi  dioecesi  nostrae  secundum  ipsius 
Statuta  et  ordinationes  deservies  et  deservire  facies. 
juraque  ejusdem  manutenebis  et  pro  posse  defendes, 
necnon  et  alia  consultoris  officia  fideliter  adimplebis; 
emissa  etiam  prius    per    te  ipsuni    professione   fidei 

8 


50  LEGAL    FORMULARY. 

coram  Nobis  (vel  vicario  nostro  g"etierali.j  Volumus 
autem  ut  in  consultorem  dioecesanum  omnes  Nobis 
in  episcopatu  et  jurisdictione  subjecti  te  recoo'uoscant, 
recipiant  et  admittant.  Et  ita  statimus  ac  exequi 
et  publicari  mandamus. 

Datum  &c. 
I^L.  s.l  N.  Episcopus  N. 

N.  N.  Cancellarius  Episcopalis." 

Note.  -On  Aug.  3],  1886,  Bp.  McNeirny  of  Albaoy  asiked  the 
Propaganda  ''May  the  vicar  general  of  a  bishop  be  a  consultor  ?"" 
("Cardinal  Simeone,  after  giving  the  reasons  why  the  vicar  general 
should  not  be  a  ccnsultor,  the  principle  one  of  which  is  that  the 
I  wo  offices  are  essentially  distinct  and  should  be  discharged  by 
two  different  persons,  gives  his  decision  in  these  words:  "Negative 
\"el  saltern  non  expedire."  On  receipt  of  this  answer  the  Arch- 
bishop of  New  York  wrote  the  Cardinal  Prefect  stating  that  his 
\'icars  general  knew  the  diocese'very  well  and  that  their  advice  in 
matters  comiiig  before  the  consultors  would  be  very  important 
and  asking  permission  for  them  to  be  appointed  consultors.  The 
answer  came  back:  ''Tolerari  posse,  modo  tres  saltern  alii  con- 
sultores  habeantur."  Prom  which  it  seems  the  appointment  of  a 
vicar  general  as  consultor  is  only  tolerated  and  from  the  words  of 
tlie  ariswor  provision  was  made  only  for  that  particular  case. 


CHAPTl^^R  V. 

APPOINTMFA'T      OF      KURAr.      UEANS      AND      BISHOP's 

CHANCBLLOK. 

54.  In  former  times  when  access  to  the  episcopal 
city  was  difficult  and  necessity  more  frequent,  cer- 
tain priests  were  commissioned  b}'  the  bishop  to  act 
as  vicars  forane  or  rural  deans.  They  had  nu 
authority  in  criminal  matters,  but  could  settle  sum- 
marily trivial  civil  contentions.  To-day  where  they 
exist  thev  have  no  jurisdiction  nor  anv  authorit\ 
whatever  over  the  clerg*}'  of  their  districts,  except 
to  preside  at  the  theolog"ical  conferences  which  art^ 
held  accordino-  to  diocesan  statutes.  Besides  this 
the}'  may  be  empowered  to  watch  and  report  to  the 
bishop  at  stated  times  "whether  the  clerg*}"  and  peo- 
ple live  as  they  should,  whether  proper  worship  is 
held  in  the  churches,  whether  the  furnishinors  of  the 
church  and  especially  the  sacred  vessels  are  kept 
clean  and  whether  the  decrees  made  by  the  bishop 
on  visitation  are  properly  executed." 

55.  Rural  deans  have  no  precedence  over  the 
clerg"y  of  their  district  except  durino-  conference. 
"Anv  custom  to  the  contrary  is  an  abuse."  Confer 
Zitelli,  Appar.  Juris  Eccl.  page  14J.  Craisso)i  Mct)i- 
uah\  )i.  6j4.)  "The  Sacred  Cong-reo-ation  oF 
Rites  in  at  least  sixteen  decisions  given  to  different 
countries  and  made  of   universal  application,  has  de- 


52  LEGAL    FORMULARY. 

creed  that  "a  vicar  forane  or  rural  dean,  by  reason 
of  that  office  has  no  precedence  in  choir,  in  sessions, 
in  processions  and  in  other  acts  and  ecclesiastical 
functions  over  other  parish  priests,  canons  and 
priests  older  and  more  worthy  than  himself;  but  the 
vicar  or  dean  must  stand,  sit  and  walk  in  the  place 
of  his  reception  and  di^nit\%  just  as  if  he  were  not  a 
vicar  forane  or  dean,  both  with  the  cotta  and  with- 
out it  notzuit hstmiding'  any  and  every  order  of  the 
bishop  to  the  contrary ;  except  only  in  those  congre- 
g-ations  or  conferences  which  are  held  each  month  b}' 
order  of  the  bishop,  in  which  as  the  delegate  of  the 
bishop  he  should  precede  all,  but  not,  however,  in 
the  procession,  mass  and  other  acts  which  take  place 
before  or  follow  the  conference."  And  in  another 
decree,  intendinof  to  eliminate  even  the  custom,  the 
same  Sacred  Cong-regfation  ordered  the  observance 
of  the  above  decree,  "notwithstandino- any  and  ever}^ 
custom  to  the  contrary."  {Confer  Ferraris  sub 
verbo  Vicarius ;  Monacelli,  Tom.  /,  ///.  /,  form.  4.) 
Hence  not  even  the  bishop  can  entitle  a  rural  dean, 
"Very  Reverend;"  which  is  an  abuse,  and  the  use  of 
which  title  is  unauthorized  and  unjust.  Rural 
deans  are  not  appointed  for  life,  but  at  the  pleasure 
of  the  bishop;  hence  their  appointments  lapse  with 
the  death  of  the  bishop,  and  a  new  desigfnation  is  re- 
quired after  the  vacant  see  is  filled. 

56.   The  following-  form  ma}^  be  used    in   making 
the  appointment: 

"N.  Dei  et    Apostolicas  Sedis  g^ratia  Kpiscopus  N. 

Dilecto  Nobis  in  Christo  N.  N.    (Doctori  vel  alias) 
salutem  in  Domino. 


RURAL    DEANS.  53 

Multlfariis  dioecesis  nostra,'  nei^'otiis  implicati, 
cupientes  tamen  ut  clerus,  praesertim  junior,  in  dis- 
trictu  a  sede  nostra  procul  remoto,  in  pietate,  studiis 
et  moribus  progfressum  faciat,  caventes  insuper  ne 
abusus  in  cultuni  divinum  vel  in  cleruni  irrepant, 
te,  de  cujus  probitate  et  idoneitate  plurimum  in 
Domino  confidinius,  in  nostrum  vicarium  foraneum 
seu  decanum  ruralem  ad  beneplacitum  nostrum  (vel 
ad  trennium)  in  loco  N —  nostra*  dicecesis  facimus, 
constituimus  et  deputamus;  dantes  tibi  facultatem 
cong-ressibus  seu  collationibus  theologficis,  juxta 
statuta  dioecesana  habendis,  pra3sidendi,  imponentes- 
que  in  te  opus  discrete  vio-ilandi  fideliterque  Nobis 
referendi  num  clerus  et  populus.  ut  decet,  vivant,  et 
notabilia,  si  qua?  in  districtu  conting-ant,  tempore 
informandi:  sine  tamen  quacunque  mercede  ex  hoc 
capite  percipienda,  vel  alia  pra^eminentia  quam  in 
collationibus  theolog-icis  tibi  vindicanda;  mandantes 
omnibus,  ad  quos  spectat,  ut  te  in  talem  vicarium 
recog-noscant  et  admittant.  Ita  statuimus  ac  pub- 
licari  jubemus.      Datum  &c. 

|l.  s.]  N.  Episcopus  N. 

N.  N.  Cancellarius  Kpis. " 

From  time  to  time,  as  the  occasion  requires,  the 
l)ishop  may  g-ive  special  faculties  or  instruct  the  dean 
to  look  after  certain  specified  matters.  A  rural 
dean  has  no  faculties  from  the  law:  all  he  has  hv 
must  receive  from   the  bishop. 

57.  A  necessary  official  in  every  episcopal  curia  i-^ 
the  bishop's  chancellor.  The  law  supposes  him  to 
be  a  layman,  but  clerics  are  not  prohibited  from  act- 
ing- as  chancellors  to  bishops.  (Monacelli  Tom,  /. 
tit.  /,  forjn  5.)  The  duty  of  the  chancellor  is  to 
draw  up  and  countersig-n  documents  necessary  in 
granting-  favors  or  administering"  justice  and  to  care- 
fully g-uard   and   preserve  documents   pertaining-  to 


54  LEGAL    FORMUIvARY. 

the  diocese  and  its  administration.  He  mav  be  con- 
sidered  a  notar}^  whose  official  writing's  are  to  be 
credited  throu,i>"hout  the  diocese  in  ecclesiastical 
courts  and  out  of  them.  The  work  of  the  episcopal 
chancery,  that  is,  the  position  itself,  must  neither  be 
sold  nor  rented;  but  must  be  performed  by  the 
bishop's  servants  on  a  stated  salary  without  an}^ 
participation  in  the  emoluments.  {Confer  Ferraris, 
Cancellarius,  )i.  7.)  The  emoluments  or  charg^es 
for  drawing'  documents  should  not  exceed  the  tax 
arrang-ed  by  Pope  Innocent  XI  where  it  applies,  and 
should  otherwise  conform  to  the  diocesan  regfulations. 
The  chancellor  of  a  bishop  must  conform  his  charg'e 
to  the  taxa  IrDiocentiana  for  copies  of  acts  and  of 
civil  or  criminal  processes.  This  charg'e  cannot  be 
more  than  half  a  "Roman  Julius"  for  a  two  pag^e  sheet 
of  which  each  pag'e  must  consist  of  at  least  twenty 
lines  and  each  line  of  at  least  tw^enty  letters,  making- 
forty  lines  of  twenty  letters  each  for  half  a  "Roman 
Julius."  But  the  chang-e  in  the  value  of  coins  should 
also  be  considered. 

58.  The  position  of  episcopal  chancellor,  it  is  evi- 
dent, is  one  of  trust,  but  not  of  special  honor.  It 
belong's  to  the  laity  rather  than  the  clergfy.  When 
filled  by  a  clergfyman,  even  by  a  priest,  it  g-ives  the 
clerg'yman  no  precedence  whatever  over  the  other 
clerg"y;  nor  can  the  bishop  because  of  the  office  of 
chancellor  gfive  its  incumbent  any  such  precedence. 
The  office  is  that  of  a  familiar,  trusted  and  hard- 
worked.  Should  the  bishop  desire  to  favor  his  chan- 
cellor if  a  priest,  he  should  appoint  him  also  to 
some  other  office  which  will  g'ive  him  the  desired 
precedence.     This  view  is  sustained  by  an  answer  of, 


BISHOP  S    CHA^XELLOR.  0:5 

the  Sacred  Propaganda  g-iven  Dec.  22,  18%.  to  a 
bishop  who  desired  to  sub-deleg'ate  certain  matri- 
monial faculties  to  his  chancellor,  for  the  reason  that 
his  vicar  gfeneral  resided  out  of  the  episcopal  city. 
The  answer  ignored  the  chancellor  and  advised  the 
bishop  to  appoint  a  vicar  gfeneral  in  curia.  An  in- 
quiry into  the  validity  of  some  dispensations  sig-ned 
bv  the  bishop's  chancellor  even  thouo-h  a  priest,  but 
not  sig'ned  by  the  bishop  or  the  vicar  iJfeneral.  miffht 
be  quite  pertinent.  While  it  miofht  appear  pre- 
sumptuous to  question  such  methods,  still  some  care- 
ful pastors  migfht  prefer  not  to  use  such  dispensa- 
tions, especially  when  extraordinary  faculties  are  re- 
([uired.  The  chancellor  by  law  has  no  rigfht  or 
j)Ower  to  issue  dispensations;  he  simply  draws  the 
document  and  attests  the  bishop's  siofnature  or  that 
of  the  vicar  o-eneral;  if  sub-deleo-ated  by  the  bisho]) 
it  seems  he  should  mention  this  sub-delet^'ation  as 
the  bishop  is  required  to  mention  his  special  deleg^a- 
tion  by  the  Holy  See.  The  bishop  himself  or  the 
vicar  general  must  siofn  the  dispensation.  If  the 
chancellor  sig'ns  the  bishop's  name  and  then  his  own. 
the  document  is  w^orthless  as  proof.  Neither  can 
the  offices  of  chancellor  and  vicar  general  be  filled  bv 
the  same  person,  for  they  are  incompatible. 

The  aspirant  for  the  position  of  episcopal  chan- 
cellor should  know  how  to  draw  up  all  necessary 
documents  pertaining-  to  the  bishop's  office,  and  all 
the  laws  g-overningf  ecclesiastical  processes  in  which 
he  may  be  oblig-ed  to  participate;  for,  if  throug"h 
fault  of  his,  damag-e  is  done,  he  is  liable  therefor. 
Before  taking-  possession  he  must  take  the  oath  ot 
office.     The   parties   t(^   a   cause   mav  challeng-e  the 


56  LEGAL    FORMULARY. 

chancellor   for    good  reasons,    and    another   actuar}" 
must  then  be  assig'ned  for  that  case. 

59.  The  follow! nij-  form  may  be  used  for  the  ap- 
pointment: 

"N —  Episcopus  N—  Dilecto  Nobis  in  Christo 
N— ,  &c. 

Cum  de  idoneo  cancellario  providere  cupiamus  qui 
Nobis  et  tribunali  nostro  inserviat,  et  quse  in  illo 
ag"enda  sunt  dilig-enter  adimpleat,  et  scripturas 
librosque  ad  nostram  cancellariam  spectantesfideliter 
custodiat,  erga  personam  tuam  mentis  aciem  direxi- 
mus,  cujus  vitse  honestas,  morum  probitas,  fides, 
dilig^entia,  habilitas,  aliaeque  qualitates  apud  Nos 
multiplici  commendantur  testimonio.  Ouapropter 
illarum  intuitu  tenore  prassentium  auctoritate  nostra 
ordinaria,  et  omni  alio  meliori  modo  quo  possumus, 
te  in  nostrum  cancellarium  eligfimus  et  deputamus 
cum  facultate  universa  et  sing-ula  a«"endi  et  faciendi 
tam  in  voce  quam  in  scriptis  quae  oferere  et  facere 
secundum  leg'em  possunt  et  debent  cancellarii  epis- 
copales;  ita  ut  tuis  scripturis  tarn  publicis  quam  pri- 
vatis  durante  officio  omnis  fides  in  judicio  et  extra 
adhibeatur.       Ac    insuper  assigfiaamus    tibi   annuuni 

salarium doUariorum,    quod    mensuali    portione 

ex  fdioecesanis)  fuudis  accipies  cum  congrua  habita- 
tione  et  victu  in  aedibus  nostris  episcopalibus,  sine 
tamen  alio  quocunque  emolumento,  exceptis  qua^ 
juxtataxam  dicecesanam  pro  documentis  transcriptis 
rite  accipies,  vel  alio  modo  ex  nostra  liberalitate  tibi 
specifice  donabuntur.  Mandamus  itaque  omnibus 
nostrae  jurisdiction!  subjectis,  ceterisque  ad  quos 
pertinet,  ut  te  in  talem  ag'noscant  et  recipiant  sul) 
poenis  nostro  arbitrio  pro  modo  culpee  infli^endis. 
Praesentibus  ad  nostrum  beneplacitum  valituris.  In 
quorum  fidem  &c.  Datum  &c. 
[l.  s.]  N.  EpiscopLis  N. 

N.  N.  Secretarius  K])iscopi/' 


bishop's  chancellor.  57 

60.  This  appointment  should  be  countersig-ned  by 
the  bishop's  secretary  and  by  him  copied  in  the 
chancery  reg"ister  that  no  dispute  may  occur  regard- 
ing- the  validity  of  the  chancellor's  acts.  Proper 
notice  should  also  be  g"iven  to  the  diocesan  clergfy  in 
the  usual  way.  The  oath  to  be  taken  by  the  chan- 
cellor before  taking-  possession  of  his  ofifice  is  as  fol- 
lows: 

"Kgro,  N.  N.  curiae  episcopalis  N —  cancellarius 
electus,  promitto,  spondeo  et  juro,  me  officium  quod 
suscepi  hdeliter  et  sincere  quantum  in  me  est 
executurum  et  impleturum,  nee  quidquam  in  eo 
favore  aut  g^ratia  humana  acturum;  sic  me  Deus 
adjuvet  et  haic  Sancta  Dei  l^vang^elia." 

A  notary  or  actuary  appointed  for  a  special  case 
or  in  g^eneral  is  oblig^ed  to  take  a  similar  oath,  a 
neg^lect  to  do  which  will  render  at  least  suspected  if 
not  invalid  all  the  records  he  writes.  [Confer  Moii- 
acclli,  Tom.  /,  Til.  7.  Form.  10.)  He  sa^^s  that  all 
officials  on  taking"  office  are  oblig"ed  to  make  oath  to 
fulfill  their  duties  properly. 

The  chancellor  has  no  precedence  over  the  clerg^y 
because  of '  his  office,  which  is  merely  that  of  a 
notary.  He  cannot  be  entitled  "Very  Reverend," 
as  specially  shown  in  the  following"  chapter,  n.  65. 

It  should  not  be  overlooked  that  the  bishop's  chan- 
cellor has  by  law  no  right  whatever  in  the  adminis- 
tration of  diocesan  property;  hence,  if  advisable, 
special  provision  should  be  made  for  this  purpose  in 
each  new  appointment,  and  notification  thereof  griven 

the  clerg-y. 

9 


CHAPTER  VI. 

APPOINTMENTS      OF       NOTARY,       SECRETARY       AND 

ECONOME   OF    BISHOP. 

61.  The  chapters  "Quoniam,"  de  Probationibiis, 
and  "Ut  ofFicium"  de  Hccreticis  ordain  that  judicial 
acts  must  be  written  either  by  a  public  notary  or  by 
two  competent  men.  But  custom  has  abolished  the 
employment  of  these  two  writers,  as  Reiffenstuel 
shows.  {Cf.  Lib.  V.  Decret.  tit.  /,  7i.  344.)  There- 
fore a  notary  public  is  absolutely  required  for  the 
purpose;  otherwise  the  acts  would  neither  be  authen- 
tic nor  worthy  of  confidence  and  therefore  the  whole 
judicial  proceeding*  on  account  of  this  defect  would 
be  nullified. 

62.  A  notary  is  a  person  constituted  by  public 
authority,  so  that  acts  written  and  attested  by  him 
may  be  considered  authentic  and  worthy  of  confi- 
dence. The  necessity  of  having*  such  persons  is  rec- 
og^nized  by  both  the  church  and  the  various  civil 
g*overnments.  None  but  the  supreme  power  in 
church  or  state  can  by  inherent  rig*ht  create  notaries. 
Thus  only  the  Pope  for  the  church,  the  President  or 
Governor  for  the  state.  The  reason  is  that  only  the 
supreme  power  can  enact  or  introduce  what  exceeds 
the  law  of  nations,  such  an  enactment  being*,  "that 
full  credence  shall  be  g*iven  to  the  writing*  of  one 
man  which  is  a  dead  and  inanimate  w^itness  without 

58 


CREATION   OF    NOTARIES.  59 

the  corroboration  of  a  living"  voice  or  other  attesta- 
tion." This  is  the  unanimous  teachintr  of  canonists; 
but  they  also  teach  that  by  custom,  introduced  with 
the  consent  of  the  Pope,  bishops  may  create  notaries 
for  their  dioceses.  Since,  however,  the  creation  of 
notaries  is  held  to  be  an  act,  not  of  voluntary,  but  of 
contentious  jurisdiction,  a  bishop  living-  outside  his 
diocese  cannot  there  create  a  notary  or  chancellor 
for  his  diocese.  {Cf.  Pirhing-,  Tit.  22,  Lib,  2,  Deer; 
Boicix,  De  Judiciis,  page  44(^.) 

63.  Because  the  bishop  has  the  power  to  create 
notaries  only  from  g-eneral  custom,  it  follows  that  he 
must  himself  perform  this  act  and  cannot  deleg-ate  it 
to  his  vicar  general  or  others.  This  point  is  import- 
ant for  ecclesiastical  trials  and  in  fact  for  all  public 
documents.  Since  the  bishop's  chancellor  is  a  notar}^ 
it  applies  also  to  the  appointment  of  the  chancellor. 

The  o'eneral  and  provincials  of  relig-ious  orders 
may  create  notaries  for  judicial  processes  within  the 
order;  and  inquisitors  may  create  them  for  processes 
concerning-  faith. 

Notary  seems  to  be  a  g^eneral  term.  An  actuary 
is  a  notary  appointed  to  write  the  acts  of  a  particu- 
lar case  or  cases,  and  seems  to  be  rather  a  specific 
term.  But  in  g-eneral  the  terms,  notar3\  actuary, 
chancellor  are  interchang^eable,  and  the  qualifications 
should  be  the  same. 

64.  Notaries  created  by  the  Hol}^  See  are  called 
apostolic  notaries,  and  have  authority  throug'hout 
the  world.  There  are  two  classes,  notaries  and  pro- 
tonotaries.  Protonotaries  are  either  participating- 
in  the  Roman  curia,  seven  in  number,  or  ad  i)istar 
particifantiinn.     Notaries  created    by     bishops    are 


60  LEGAL    FORMULARY. 

called  ecclesiastical  notaries;  those  created  by  the 
state  are  termed  usually  notaries  public. 

A  notary  can  validly  draw  up  and  attest  writing's 
only  within  the  territory  of  the  power  appointing" 
him.  It  is  held  as  probable  by  canonists  that  by 
custom  a  notary  may  outside  his  territory  by  consent 
of  subjects  of  his  own  territory  draw  up  documents 
for  them.  i^Cf  PirJiing^,  I.  c.^  An  instrument  drawn 
validly  by  a  notary  in  his  territory  is  held  authentic 
everywhere;  thoug'h  the  state  g^overnments  usually 
require  the  consular  seal  of  their  own  representative 
in  foreig"n  countries  to  attest  the  notary's  sigfnature. 

65.  By  g*eneral  law  all  clerics  in  sacred  orders  are 
prohibited  from  acting*  as  notaries,  chancellors  or 
actuaries.  This  is  certain  from  the  decretal  "Sicut" 
Lib.  3,  Decretalium,  title  50,  n.  8.  This  prohibi- 
tion according"  to  Fag"nanus,  in  locimi  citatuvi,  and 
other  canonists  applies  whether  clerics  have  benefices 
or  not,  and  according"  to  the  same  author  it  applies 
also  to  all  clerics  in  minor  orders  who  have  a  suffi- 
cient support.  Religfious  are  also  prohibited,  as  is 
evident  from  Caput  ut  offtcium.  {Lib.  j,  ///.  2,  n.  11, 
in  6°.)  But  by  that  same  decretal  an  exception  is 
made  for  causes  of  faith  and  heresy,  so  that  any 
competent  cleric  may  act  as  notary  for  these  cases, 
and  must  serve  without  compensation.  Another  ex- 
ception is  made  for  apostolic  notaries,  for  the  Pope 
when  appointing"  them,  by  that  fact  dispenses  from 
the  g"eneral  law.  {Cf.  Faguanus,  /.  6\)  According" 
to  the  g"eneral  written  law  this  prohibition  ag"ainst 
clerics  being"  notaries  applies  also  to  causes  in  eccle- 
siastical courts;  but  by  the  g"eneral  practice  of  to- 
day, as  well  as  that  of  former  times,   it  is  lawful  for 


ECCLESIASTICAIv    NOTARIES.  61 

clerics  even  in  major  orders,  to  act  as  notaries  or 
chancellors  for  acts  of  ecclesiastical  authority. 
{Cf.  Tliomassinus,  Vet.  et  Nov.  Ecc.  Discif.  /,  /.  2, 
c.  106;  Monacclli,  Tom.  /,  ///.  I,  form .  ^.')  Fao-na- 
nus,  however,  and  others  claim  the  contrary.  But 
whether  it  is  more  expedient  to  have  a  layman  than 
a  cleric  for  the  bishop's  chancellor  and  for  the  busi- 
ness of  the  ecclesiastical  courts,  must,  it  seems,  be 
left  to  the  judg-ment  of  the  bishop.  Where  a  tax  is 
assessed  on  documents,  people  are  likely  to  decry  the 
chancellor,  particularly  if  a  clergyman.  But  on  the 
other  hand  the  many  delicate  matters  of  the  bishop's 
curia  which  must  be  recorded  and  g-uarded  by  the 
chancellor  suofg^est  that  he  mig'ht  with  crreater  pro- 
priety be  in  major  orders  if  not  a  priest.  This  would 
also  be  more  satisfactory  to  the  clerg^y  at  largfe. 

From  the  above,  however,  it  is  ver}'  evident  that 
the  chancellor,  notary  or  actuary  cannot  by  virtue  of 
his  office  have  any  precedence  over  the  clerg\% 
whether  he  be  a  priest  or  not.  Neither  can  the 
bishop  g-ive  the  chancellor  any  precedence,  as  shown 
in  chapter  three  of  part  second  of  this  book.  It  also 
follows  that  entitling"  a  bishop's  chancellor  "Very 
Reverend,"  because  of  that  position,  is  preposterous. 

66.  Laymen  certainly  may  act  as  chancellors  for 
the  bishop  or  as  notaries,  also  in  spiritual  matters, 
provided  they  are  appointed  by  ecclesiastical  author- 
ity. Strictly  speaking-,  notaries  created  by  the  state 
cannot  act  in  ecclesiastical  matters,  unless  custom 
has  made  such  acting"  lawful.  A  reservation,  how^ever, 
must  be  made  for  causes  of  canonization,  for  which 
none  but  an  apostolic  notary  can  be  employed.  For 
the  drawing-  up  of  ecclesiastical  documents  scarcely 


62  LEGAL    FORMULARY. 

any  state  notary  with  us  would  be  considered  fully 
competent,  and  it  must  be  said  that  no  custom 
with  us  has  authorized  notaries  public,  or  state 
notaries,  to  act  in  church  matters,  except  possibly  to 
attest  by  siofnature  and  seal  the  affidavits  of  wit- 
nesses and  others  in  matters  to  be  submitted  to 
ecclesiastical  courts.  Such  attestation  has  been  held 
valid  by  the  Apostolic  Deleofation. 

67.  Certain  qualifications  are  required  in  an  eccle- 
siastical notary,  amono-  them  being*  leg"itimate  birth 
and  a  knowledg-e  of  law,  thoug-h  not  necessarily  a 
deg-ree  in  it.  If  he  presumes  to  act  without  sufficient 
knowledg-e,  he  is  liable  for  all  damag^es  caused  by 
mistakes.  So  true  is  this,  that  a  bishop  may  cause 
not  only  his  own  appointed  notaries,  but  also  apos- 
tolic notaries  to  be  examined,  and  if  found  incompe- 
tent he  may  prohibit  them  from  continuing*  to  act. 
A  notary  or  chancellor  sins  ag'ainst  his  office  if  he 
undertakes  it  without  sufficient  knowledg-e  of  law 
and  the  practice  of  courts,  or  if  he  violates  his  oath, 
or  adds  or  detracts  anything*  important  in  taking* 
testimony.  Ag-ain  he  sins  if  he  commits  the  exami- 
nation to  a  cop3nst  with  dang-er  of  mistakes,  or  if  he 
is  neg"lig"ent  in  g-uarding*  the  acts  to  the  injury  of  the 
parties.  Further  he  sins  if  throug-h  culpable  ig-no- 
rance  or  malice  he  omits  the  necessary  solemnities  in 
documents,  or  if  he  draws  up  a  false  document  or 
violates  the  secret  of  his  office,  for  example  by  re- 
vealing- testimony  to  one  or  the  other  party  before 
the  legfal  publication.  He  sins  also  by  hiding-  the 
acts  or  refusing-  copies  of  the  process  to  the  parties, 
or  by  placing-  a  fictitious  document  in  the  stead  of 
one  lost.     He  can  also  offend  by  acting*  throug-h  fear 


NOTARIES   MUST    TAKE   OATH.  63 

or  favor.     Incompetent  notaries  not  unfrequentl}^  are 
the  occasion  of  much  scandal  and  injury. 

68.  Common  usag-e  has  made  it  obli<ratory  for  the 
notary  or  chancellor  to  take  on  entering  upon  his 
duties  an  oath  of  fidelity.  This  usa^e  is  immemor- 
able,  for  documents  even  of  the  middle  aj^^-es  contain 
such  sio-natures  as  "I.  N.  N.,  a  sworn  notary." 
Pope  Clement  V  prescribed  such  an  oath  to  be  taken 
by  the  notaries  commissioned  by  the  twenty  French 
bishops  to  whom  that  privilege  was  o-ranted  in  the 
council  of  Vienne;  but  there  seems  to  be  no  jL^eneral 
positive  law.  However,  the  universal,  immemorable 
custom,  as  well  as*  the  unanimous  teaching-  of  canon- 
ists, requires  the  notary  to  take  oath;  and  its  omis- 
sion would  undoubtedly  render  all  his  acts  suspected 
if  not  ipso  facto  null  and  void.  So  certain  is  this, 
that  it  may  be  maintained  that  a  notary  until  he  has  . 
taken  the  oath  of  office  is  onh'  a  private  person  and 
his  word  is  only  that  of  a  private  individual.  Fur- 
ther, if  an  oath  is  required  of  a  witness  for  the 
validity  of  his  testimony,   unless  specifically  waived, 

a  fortiori  the  oath  of  office  is  required  for  the  validit}^ 
of  such  an  extraordinary  w^itness  as  the  mere  writ- 
insf  of  the  notarv.  Moreover,  article  18  of  the  "Cum 
mag-nopere"  enacts  that  all  officials  in  trials  must 
make  oath  to  perform  their  duties  faithfully.  For 
public  safety,  therefore,  and  because  of  the  import- 
ance of  the  matter,  the  acts  of  a  notary  who  has 
not  taken  the  oath  of  office  should  be  held  and  have 
been  held  null  and  void.  The  form  of  this  oath  for 
the  notar}^  is  given  in    n.  60  of  the  previous  chapter. 

69.  The  following'  form  may  be  used  in  appointing 
a  notary: 


64  LEGAL    FORMULARY. 

"N.  Kpiscopus  N. —  Dilecto  iilio  &c.  Cum  vitae 
tuae  lionestas,  morum  probitas,  fides,  diligfentia  atque 
habilitas  apud  Nos  niultlplici  commendentur  testi- 
monio,  harum  qualitatum  intuitu,  tenore  praesentiuni, 
auctoritate  nostra  ordinaria,  et  onini  alio  meliori 
modo  quo  possunius,  te  in  publicum  notarium 
elig'imus  et  deputamus;  cum  facultate  universa  et 
sing"ula  ag*endi  et  faciendi,  tarn  in  voce  quam  in 
scriptis,  qua3  gerere  et  facere  possunt  etdebent  notarii 
publici  auctoritate  ecclesiastica  creati;  ita  ut  tuis 
scriptis  tam  publicis  quam  privatis,  durante  officio, 
oninis  fides  in  judicio  et  extra  adhibeatur;  cum  con- 
sueta  mercede;  mandantes  omnibus  nostrse  jurisdic- 
tioni  subjectis  ceterisque  ad  quos  pertinet,  ut  te  in 
talem  ag^noscant  et  recipiant,  sub  po^nis  arbitrio  nos- 
tro  pro  modo  culpae  inflig'endis.  Pra^sentibus  ad 
beneplacitum  nostrum  valituris.  In  quorum  fidem 
&c.     Datum  &c. 

N.  E^piscopus  N. 
N.  N.  Cancellarius  Episcopalis." 

A  copy  of  this  appointment  and  a  minute  of  tak- 
ing- the  oath  should  be  left  in  the  chancery  and  men- 
tion must  be  made  of  them  in  the  beginning*  of  each 
judicial  process  in  which  the  n-otary  is  engaged. 
Should  the  notary  or  chancellor  become  ill,  another 
must  be  deputed  to  take  his  place  and  a  proper  rec- 
ord be  made  in  the  acts  of  the  process.  Only  the 
bishop  himself  can  create  this  substitute  notary,  but 
not  the  vicar  general  or  a  judge-delegate  who  may 
be  acting  in  the  case.  Hence  lest  the  bishop  be 
absent  or  unable  for  some  other  cause  to  supply  the 
vacancy  when  it  occurs,  it  seems  prudent  that  he 
create  in  his  diocese  several  competent  notaries  who 
may  be  substituted  when  necessity  requires  it.  The 
state  has  several  notaries  public;  so  also  should  each 
diocese  have  more  than  one.     It  may  be  advantageous 


bishop's  secretary.  65 

also  to  have  aspirants  for  the  notaryship  attend  cer- 
tain ecclesiastical  trials  with  the  notary  of  record  so 
that  they  may  train  experience,  which  cannot  be 
acquired  from  books. 

70.  The  secretary  of  a  bishop  is  a  private  person 
who  w^rites  letters  and  otherwise  fulfills  the  orders 
of  a  bishop  for  whom  he  is  eng-a^red.  He  may  be  a 
layman  or  a  priest,  but  g^ood  policy  sug^g^ests  that  if 
not  a  priest,  he  be  at  least  in  sacred  orders,  because 
of  the  delicate  matters  which  come  to  his  knowledgfe 
throug'h  intimate  association  with  the  bishop.  For 
this  reason  also  he  should  be  eminently  trustworthy. 
He  is  not  a  public  official  and  is  not  recog'nized  in 
law.  Hence  all  communications  sent  by  him  to  the 
clerg'y  should  always  contain  the  expression  "by 
order  of  the  bishop,"  or  "the  bishop  directs  me  to 
say."  He  is  a  familiar  of  the  bishop  to  whom  he  is 
responsible,  and  who  in  turn  is  responsible  for  his 
acts- and  writing's.  The  position  itself  g'ives  him  no 
precedence  over  the  clerg-y  of  the  diocese,  and  he 
necessarily  ranks  below  the  movable  rectors,  nor  can 
the  bishop  g-ive  him  precedence  other  than  accorded 
him  by  holy  orders.  The  bishop  is  personally  re- 
sponsible for  the  salary  of  his  secretary.  Frequently 
the  bishop's  secretar}^  has  also  some  official  position 
which  g-ives  him  rank  and  additional  support. 

71.  The  Second  Plenary  Council  of  Baltimore,  n. 
75,  determined  and  expressed  the  conviction  that  it 
would  tend  g-reath^  to  the  relief  of  bishops  and  the 
gfood  of  the  church,  if  each  appointed  an  econome  or 
procurator,  either  a  layman  or  a  cleric,  for  the  ad- 
ministration of  temporalities.     His  duties  niig-ht  be 

10 


66  LEGAL    FORMULARY. 

to  care  for  the  bishop's  house  in  temporal  matters  as 
well  as  to  administer  the  diocesan  property  under 
direction  of  the  bishop,  to  whom  at  stated  times  he 
would  render  an  account.  For,  as  the  council  thinks, 
bishops,  on  whom  rests  "the  care  of  all  the  churches" 
and  "for  whom  it  is  not  rig-ht  that  they  leave  the 
word  of  God  and  minister  at  the  tables,"  should  so 
arrangfe  the  administration  of  their  dioceses  that,  not 
being-  troubled  with  the  care  of  temporal  matters, 
they  may  be  free  to  devote  their  whole  energ^y  to 
spiritual  affairs  and  the  salvation  of  souls.  The 
council  quotes  from  the  council  of  Milan  and  from 
the  reforms  introduced  by  St.  Charles  Boromeo  on 
this  subject.  The  Fifth  Council  of  Milan  as  well  as 
previous  councils  made  the  appointment  of  an  econ- 
ome  an  oblig^ation;  but  the  Baltimore  council  was 
content  with  g"iving"  a  strong  admonition  that  it 
should  be  done. 

72.  In  the  first  ag*es  of  the  church,  as  we  learn 
from  the  councils  of  Gangfra  and  Antioch,  the  bishops 
administered  all  church  property.  But  they  had 
two  checks,  the  one  that  they  were  oblig^ed  to  use 
the  advice  of  their  priests  and  deacons,  that  is  the 
cathedral  chapter,  the  other  that  they  migfht  on  com- 
plaint be  called  to  an  accounting-  and  judgment  be- 
fore the  provincial  council.  The  council  of  Calce- 
don,  canon  26,  ordered  that  each  bishop  should  ap- 
point one  of  his  clerg^y  econome  for  the  administra- 
tion of  church  property;  and  so  strict  became  the 
law,  that  Photius  later  notes  that  one  of  the  chargfes 
ag"ainst  Chrysostom  was,  "that  he  administered 
church  property  without  consultation,  that  no  one 
knew    where    the    revenues   of    the    church    went; 


bishop's  econome.  67 

that  he  had  sold  through  Theodulus  the  property 
left  by  Thecla."  The  reason  why  the  Calcedon 
council  was  moved  to  make  such  a  law  was  that 
certain  bishops,  notabl}^  Ibas  of  Edessa,  were  mal- 
administering-  church  property  and  diverting-  it  to 
the  use  of  their  families.  The  Fourth  Council  of 
Toledo,  in  canon  48,  enacted  that  "if  an}^  bishop 
hereafter  shall  choose  to  administer  church  tempor- 
alities throug"h  a  laymen  or  shall  g^overn  without  an 
econome,  he  shall  be  held  a  contemner  of  the  canons 
and  a  defrauder  of  the  church  and  shall  be  amenable 
to  the  provincial  council."  It  is  ag^ainst  the  law  to 
have  laymen  in  full  chargfe  of  church  property, 
thougfh  the}"  niay  be  granted  some,  participation. 
Priests  were  first  appointed  economes,  but  later  dea- 
cons beg^an  the  temporal  administration  under  man- 
date of  the  bishop  in  both  the  east  and  the  west,  and 
carried  their  pretensions  so  far  that  in  time  they 
took  precedence  of  priests,  even  of  those  having*  the 
care  of  souls.  Gradually  the  powder  of  the  arch-dea- 
cons, who  besides  having-  contentious  jurisdiction, 
were  made  economes  by  bishops,  became  so  g^reat 
that  these  administrators  became  presumptuous  even 
ag^ainst  the  bishops  who  appointed  them.  To  curb 
such  presumption  w^hich  had  become  almost  founded 
in  law%  bishops  begfan  appointing-  vicars  g-eneral  other 
than  the  arch-deacons,  and  chose  economes  from 
among-  their  clerg"v  wdio  would  be  more  docile  than 
those  already  too  powerful  throughout  the  diocese. 
73.  When  parish  priests  beg-an  to  be  appointed, 
the  tithes  and  other  church  property  in  their  parishes 
came  under  their  administration,  the  bishop  retain- 
ing- only  the  rigfht  of  supervision,   that  the  property 


68  LEGAL    FORMULARY. 

mio-ht  not  be  alienated  or  badly  administered.  The 
law  now  is  that  as  soon  as  a  parish  becomes  vacant 
an  administrator  or  econome  must  be  appointed  by 
the  bishop  to  ofuard  its  revenues.  A  similar  oblig"a- 
tion  rests  on  the  cathedral  chapter,  for  in  case  of  va- 
cancy occurring"  in  the  see,  the  chapter  must  appoint, 
according-  to  the  council  of  Trent,  an  econome  to 
temporarily  administer  the  finances  of  the  diocese. 
It  will  be  noticed  from  the  above  that  the  duties  of 
an  econome  may  vary  much.  The  economes  made 
of  oblig^ation  in  the  councils  of  Calcedon  and  Toledo 
had  charg^e  of  all  church  property,  because  no  divis- 
ion of  it  had  yet  been  made  into  four  parts,  for  the 
support  respectively  of  the  bishop,  the  clerg-y,  the 
church  fabric  and  the  poor.  But  the  Fifth  Council 
of  Milan  and  the  practice  following-  therefrom  con- 
cerned the  property  after  this  fourfold  division.  In 
its  eleventh  chapter  the  council  enacts  "that  each 
bishop  shall  appoint  an  econome,  who  shall  not  be  a 
layman,  nor  a  relative,  but  an  ecclesiastic  of  his  dio- 
cese, and  who  if  possible  shall -be  a  deacon  well 
versed  in  this  kind  of  business.  The  bishop  shall 
each  third  year  bring-  and  exhibit  to  the  provincial 
council  the  account  books  of  his  administration  by 
such  econome  and  g-ive  in  that  same  council  a  consci- 
entious report  of  his  whole  administration."  {Cf. 
V  Coitncil  of  Milan;  TJiomassiniis^  Vet.  et  N.  Eccl. 
Disc.  f>.  J,  /.  2,  c.  g-i2.) 

74.  The  apostolic  canons,  n.  39,  g-ave  to  the  bishops 
the  full  administration  of  the  offering's  of  the  faith- 
ful. But  this  discipline  could  not  and  did  not  last 
long-.  When  these  oflFering-s  were  increased  and  real 
property  was  acquired,  another  method  became  nee- 


ADMINISTRATION    OF    PROPERTY.  69 

essary.  The  bishops,  even  in  the  first  ages,  coun- 
seled with  their  presb3"teries  or  chapters  reg^arding- 
the  administration  and  distribution  of  church  prop- 
erty. Ivater  certain  councils  in  both  the  east  and 
the  west  made  it  oblio'atory  on  bishops  to  appoint 
clerical  economes.  Gradually  also  cathedral  chap- 
ters acquired  many  rights  in  the  administration  of 
diocesan  property,  while  all  parish  property  was 
subject  to  the  administration  of  the  respective  parish 
priests.  It  is  evident  also  that  bishops  were  oblio-ed 
to  render  an  account  of  their  administration  to  the 
provincial  council  ever}^  three  3^ears;  and  therefore 
that  they  had  never  an  absolute  and  irresponsible 
control  of  church  property. 

75.  While  in  missionary  countries  man}^  exceptions 
are  made  so  lono-  as  necessary  to  the  general  laws  of 
the  church,  still  prudence  dictates  that  laws  founded 
on  the  sad  experience  of  the  past  should  be  put  into 
force  just  as  soon  as  possible  also  in  the  countries 
subject  to  the  Propaganda.  The  absolute  owner- 
ship of  church  property  by  the  civil  title  being  in  the 
person  of  the  bishop  alone,  is  contrary  to  the  spirit 
and  the  laws  of  the  church  even  though  allowed  as  a 
last  resource  for  exceptional  reasons  by  the  councils 
of  Baltimore.  The  exclusive  administration  of 
church  property  by  a  la3^man  is  also  against  the  laws 
and  spirit  of  the  church  from  the  apostolic  canons 
down  to  the  present  day.  While  the  Second  Council 
of  Baltimore  allowed  such  administration  because  it 
was  supposed  then  necessary,  still  to-da}^  throughout 
the  whole  United  States,  neither  that  exception  nor 
the  other  of  the  absolute  tenure  by  the  individual 
bishop   seems   necessary   in    fact   or   maintainable  in 


70  LEGAL    EORMULARY. 

g-ood  conscience  in  view  of  the  censures  lodgfed  ag^ainst 
alienation  of  church  property.  The  tenure  before 
the  civil  law  which  best  harmonizes  with  the  laws 
and  spirit  of  the  church,  is  the  plan  of  a  corporation 
consisting"  of  the  bishop  and  several  priests,  with 
whom  if  advisable  a  minority  of  laymen  may  be  as- 
sociated. This  is  in  vogfue  in  several  states  and  has 
been  found  eminently  satisfactory.  It  best  secures 
the  property  and  yet  amply  preserves  the  authority 
of  the  bishop.  Further,  it  seems  an  approach  to  the 
chapter  system,  and  will  do  away  with  the  odium  of 
one  man  holding  immense  properties.  The  corpora- 
tion plan  has  also  received  the  sanction  of  the  Sacred 
Propaganda  in  a  Detroit  case,  decided  January  11, 
1897,  wherein  these  words  are  used:  "This  same 
decision  shall  remain  in  force  when  the  administra- 
tion of  the  diocesan  funds  shall  pass  to  a  corporation 
to  be  eventually  established  for  the  holding  of  the 
property  appertaining  to  the  diocese." 

76.  The  mandate  of  the  bishop  to  his  econome 
should  explicitly  desig'nate  the  duties  of  the  latter, 
and  if  the  econome  thereby  is  obliged  to  correspond 
with  the  clergy  of  the  diocese  and  receive  from  them 
the  sums  required  for  cathedraticum  and  such  pur- 
poses, his  appointment  must  be  published  to  them  so 
that  they  may  know  precisely  what  are  his  powers. 
The  law  gives  him  no  authority,  but  makes  all  his 
power  and  duties  depend  on  the  written  mandate  of 
the  bishop.  The  office  of  econome  to  the  bishop  is 
one  of  trust  and  grave  responsibility;  but  since  it 
may  be  held  by  a  deacon  or  any  lower  cleric,  the  po- 
sition cannot  give  its  incumbent  any  precedence  over 


TENURE  OF  CHURCH  PROPERTY.        71 

the  diocesan   cler^ry;  nor  can  the   will   of  the   bishop 
enforce  precedence  to  the  detriment  of  others. 

Following-  is  a  <^eneral  form  for  the  appointment 
of  an  econome,  which  may  be  chan^^cd  according  to 
desire: 

"N.  Bishop  of  N.  to  Rev.  N.  N.  Beloved  in  the 
Lord.  Greetin^^:  The  councils  of  the  church  hav- 
ing" wisely  advised  that  bishops  should  appoint  an 
econome  for  the  manag'ement  of  their  household  and 
other  temporal  affairs,  we,  seeing-  the  g-reat  utility 
for  our  diocese  which  may  ensue,  have  resolved  to 
relieve  ourselves  of  much  of  our  detail  work  in  tem- 
poral affairs  and  to  confide  it  under  our  supervision 
to  some  experienced,  faithful  and  devoted  clerg-yman. 

Trusting-  therefore  in  your  experience,  tact  and 
carefulness  in  business  matters  and  having-  g-reat 
confidence  in  your  honesty,  fidelit3%  unselfishness  of 
character  as  well  as  devotion  towards  ourselves,  we 
hereby  choose,  desigfnate,  make  and  appoint  you  our 
econome  in  temporal  matters  during-  our  g-ood  pleas- 
ure, g-iving-  you  all  and  singrular'  the  necessary 
powders  to  collect  cathedraticum  and  all  other  moneys 
or  oblig-ations  due  us  or  our  manse  by  diocesan  law  or 
custom  from  the  parishes  or  priests  or  other  persons 
of  our  diocese  or  for  interest  on  invested  funds; 
authorizing-  you  to  receipt  officially  for  the  same 
when  paid,  and  to  place  all  moneys  so  received  as 
well  as  others  which  may  come  into  your  charg-e,  in 
a  bank  or  other  place  of  safe-keeping-;  authorizing- 
you  further  to  pay  from  said  moneys  the  necessary 
expenses  of  our  household  and  such  other  items  as 
we  from  time  to  time  may  direct;  and  after  consulta- 
tion with  us  to  invest  the  balance  of  such  funds;  in- 
structing- you  hereb}^  to  keep  proper  and  exact  ac- 
counts of  all  receipts  and  expenses  and  to  render  an 
accounting-  to  us  in  writing-  at  the  expiration  of  each 
three  months  and  as  often  as  we  shall  require;  allow- 


72  LEGAL    FORMULARY. 

\ng   you  a   yearly    salary   of   dollars,    payable 

monthly,  and  also  proper  lodgfing*  and  board  in  our 
episcopal  residence.  And  we  command  all  whom  it 
may  concern  to  recoa"nize  you  as  our  econome  and 
pay  to  you  the  moneys  hereinbefore  mentioned.  In 
testimony  whereof  we  have  ordered  the  above  letters 
patent  to  be  expedited,  registered  in  our  chancery 
and  published.     Given  at  &c. 

N.  Bishop  of  N. 
N.  N.  Bishop's  Chancellor." 


CHAPTER  VII. 

APPOINTMENT  OF    FISCAIv  PROCURATOR,    DEFENDER 

OF    MARRIAGE    BOND,    COURT    MESSENGER, 

AUDITORS   OF    ACCOUNTS. 

77.  In  every  diocese  it  is  necessary  that  a  curia  be 
established  for  the  exercise  of  contentious  jurisdic- 
tion. In  the  United  States  a  diocesan  curia  is  of 
strict  law  and  a  papal  dispensation  is  required  for 
temporary  relief  from  the  oblig*ation  of  establishing- 
it.  iCf'  Third  Plot.  Council  Bait.  }i.  2g'/-2gS.) 
By  the  diocesan  curia,  or  the  bishop's  court  is  meant 
that  body  of  persons,  who,  either  with  the  bishop  or 
in  his  name  exercise  contentious  jurisdiction.  In 
the  United  States  this  court  is  necessarily  composed 
of  the  bishop  or  vicar  g-eneral  or  his  deleg^ate,  as 
judge;  of  the  chancellor  of  the  diocese  or  some  other 
notary  as  actuary  or  secretary;  and  of  the  fiscal  pro- 
curator as  plaintiff  or  accuser.  To  these  the  bishop 
may  add,  if  advisable,  an  auditor,  other  notaries  and 
messeng-ers.  A  special  tribunal  should  also  be  pro- 
vided for  matrimonial  causes. 

78.  According-  to  article  13  of  the  instruction 
*'Cum  mag-nopere,"  a  fiscal  procurator  or  diocesan 
prosecutor  must  of  necessit}^  be  appointed  in  every 
episcopal  curia,  "in  order  that  justice  and  the  law 
may  be  satisfied."     A  criminal  trial  without  a  reg-u- 

11  73 


74  LEGAL    FORMULARY. 

larly  appointed  fiscal  procurator  is  ipso  facto  null 
and  void.  It  is  the  riorht  of  the  prosecutor  to  inter- 
vene at  all  judicial  proceeding's,  whenever  any  step 
is  taken  against  an  accused  person.  It  is  the  rig"ht 
and  duty  of  the  fiscal  procurator  to  draw  up  and 
present  the  charges  ag'ainst  the  accused  and  he  is 
therefore  responsible,  if,  through  his  carelessness, 
malice  or  want  of  firmness,  malicious  charges  are 
allowed  to  be  heard  in  court;  for,  before  the  bishop 
may  cite  an  accused  person  the  opinion  of  the  pro- 
curator must  be  given  that  the  charges  seem  sus- 
tainable. 

79.  It  is  evident,  therefore,  that  a  fiscal  procura- 
tor must  know  canon  law  not  only  in  its  primary 
principles  but  in  its  details,  though  he  need  not  nec- 
essarily have  a  degree  in  law.  He  should  also  be  en- 
dowed with  great  prudence,  for  an  imprudent  or 
ignorant  procurator  can  do  immense  harm  and  easily 
create  scandal.  A  prosecutor  or  fiscal  procurator 
can  act  onlv  in  the  diocesan  curia  for  which  he  is 
appointed.  He  has  no  standing  -in  any  other  court, 
not  even  in  the  metropolitan  court  on  appeal,  unless 
he  has  been  specially  authorized  by  the  metropolitan. 

The  fiscal  procurator  is  a  familiar  of  the  bishop, 
and  must  receive  a  salary  from  him,  even  if  no  pre- 
vious arrangement  has  been  made  regarding  it. 
{Cf.  BouLx,  De  Jiidiciis,  Vol.  /,  ^.  47 S-)  He  is  ap- 
pointed during  the  good  pleasure  of  the  bishop,  and 
consequently  may  be  removed  without  a  canonical 
trial,  though  not  without  grave  and  sufficient  cause 
and  proper  security  for  his  reputation.  Any  cleric 
may  be  fiscal  procurator  for  the  bishop,  sacred  orders 
not  being  required  for  the  position.     He  has  no  pre- 


FISCAL    PROCURATOR.  75 

cedence  over  the  other  clergy,  nor  is  he  entitled 
"Very  Reverend."  In  case  of  necessity  the  vicar 
general  may  appoint  a  procurator  temporarily;  but 
he  cannot  remove  one  appointed  by  the  bishop. 

80.  The  fiscal  procurator  should  remember  that  if 
durino"  his  investi«"ation  he  discovers  testimony  favor- 
able to  the  accused  he  is  oblit>'ed  to  make  it  known. 
He  is  not  a  persecutor  but  an  official  prosecutor, 
vs^ho  acts  not  from  personal  motives  but  that  justice 
ma\^  be  satisfied.  For  the  same  reason  when  an  ac- 
cused person  has  once  been  tried  re^^fularly  and  ac- 
quitted in  the  diocesan  curia,  the  prosecutor  cannot 
appeal  to  a  hig*her  court  and  have  the  accused  ag^ain 
tried  on  the  same  charg-es.  {Cf.  Moiiacclli,  -p.  /,  ///. 
/,  f.  8.)  In  the  United  States  an  un violated  pre- 
scription of  over  a  hundred  years  from  the  establish- 
ment of  the  hierarchy  has  made  the  custom  of  the 
prosecutor  not  appealing"  from  an  absolvinor  sentence 
so  strict  a  law  that  his  attempt  to  appeal  would  not 
only  render  him  odious,  but  would  also  be  clearly 
illeg'al.  The  fiscal  procurator  on  assuming-  office 
must  take  an  oath  to  fulfill  his  duties  properly.  This 
is  required  in  the  Roman  law.  Hence,  also,  under 
canon  law,  for  no  exception  has  been  made  in  it. 
{Cf.  Bollix,  Dc  Jiidiciis  f).  473:  Craissoji,  Mauiialc 
n.  sydg.) 

81.  The  following-  form  may  be  used  in  appointing- 
a  fiscal  procurator,  publication  of  it  being-  made  in 
the  usual  way : 

"N.  Episcopus  N— .     Dilecto  N— ,  &c. 

Idoneitate,  probitate,   experientia  et  prudentia  tua 

innitentes,  ut  justitice  et  legi,  ut  decet,  in  nostra  dioe- 
cesi  satisfiat,  te  procuratorem   fiscalem  nostree  curia? 


76  LEGAL    FORMULARY. 

ad  beneplacitum  nostrum  cum  emolumentis  solitis  et 

consuetis,  seu  salario  annuo  dollariorum  men- 

strue  solvendo,  nominamus,  constituimus  et  deputa- 
mus;  dantes  tibi  omnes  facultates  necessarias  et  con- 
venientes  ad  ea  omnia  implenda  quse  ex  Instructione 
"Cum  mao-nopere"  et  Plenarii  Concilii  III  Baltimor- 
ensis  decretis  ad  officium  procuratorls  pertinere  nos- 
cuntur,  velqua^tibi  posthac  specialiter  mandabuntur; 
mandantes  omnibus  nostras  jurisdictioni  subjectis, 
ca^terisque  ad  quos  spectat,  ut  te  in  officialem  nos- 
trum episcopalem  seu  procuratorem  ag'noscant  et 
quoties  opus  fuerit  tibi  assistant.  In  quorum  fidem 
&c.     Datum  &c. 

[l.  s.]  N.  Episcopus  N. 

N.  N.  Cancellarius  Episcopalis." 

82.  In  matrimonial  causes,  when  there  is  question 
of  the  validity  or  nullity  of  a  marriag^e,  either  a 
special  judg-e  or  auditor  may  be  appointed  by  the 
bishop,  or  the  vicar  ofeneral  may  act  by  virtue  of  his 
g-eneral  appointment  if  matrimonial  causes  were 
mentioned  therein.  The  chancellor  or  notarv  may  be 
the  same  as  for  criminal  cases.  A  special  official, 
called  the  defender  of  the  marriag^e  bond,  is  required 
in  every  curia  whenever  a  judg-ment  is  to  be  passed 
on  the  validity  or  nullity  of  a  contested  marriag"e. 
His  presence  is  necessary  for  the  validity  of  the  judgf- 
ment.  The  Third  Council  of  Baltimore,  n.  305,  says 
this  defender  should  be  an  ecclesiastic  conspicuous 
for  knowledg*e  of  law  and  probity  of  life.  It  is  his 
duty  to  defend  the  bond  of  a  contested  marriag"e  and 
to  appeal  to  a  hig-her  court  in  every  case  of  a  decision 
annulling"  the  marriag^e.  The  defender  of  the  marriagfe 
bond  has  no  precedence  over  the  clergfy.  He  is  ex- 
horted by  Benedict  XIV  "Dei  Miser,  no.  12"  to  act 
without  pay;   but  if  he  insists,  then  the  party  who 


DEFENDER  OF  MARRIAGE  BOND.        77 

defends  the  validity  to  pay  him  if  possible;  other- 
wise the  judg*e  will  pay  him  out  of  the  sums  dsvoted 
to  pious  works. 

The  defender  must  take  an  oath  of  fidelity  not 
only  when  first  appointed,  but  at  the  be^^innintr  of 
each  case.  '{,Cf.  Benedict  XIV,  Deiniiseralione,  n.  y.) 

The  followinof  form  may  be  used  for  the  appoint- 
ment: 

"N.  Episcopus  N. —  Dilecto  &c.  Cum  a  Benedicto 
XIV  in  constitutione  qua^  incipit  "Dei  miseratione" 
provide  statutum  fuerit,  ut  in  disceptandis  matri- 
moniorum  (quoties  de  eorum  nullitate  ag-itur)  causis, 
aliquis  deputetur,  qui  sub  matrimonii  vinculi 
defensoris  nomine,  eorundem  valorem  ex  officio  sus- 
tineat;  idcirco  nos,  de  tua  idoneitate  et  probitate 
apprime  conscii,  te  ad  explendum  in  nostra  curia  dic- 
tum officium,  juxta  pra^laudata^  constitutionis  ten- 
orem  et  praiscripta,  nominamus,  constituimus  et 
deputamus;  mandantes  omnibus  nostras  jurisdictioni 
subjectis,  ut  te  in  defensorem  matrimoniorum  ag"nos- 
cant  et  quas  tibi,  ut  tali,  debentur,  officia  prasstent. 
In  quorum  fidem  &c.  Datum  &c. 
[e.  s.]  N.  Episcopus  N. 

N.  N.  Cancellarius  Episcopalis." 

83.  A  court  messeno-er  is  required  for  serving* 
citations,  summoning-  witnesses  and  performing*  such 
other  duties  as  usualh^  pertain  to  the  custodian  of 
the  court  room.  When  properly  appointed  and  reg"- 
istered,  his  official  testimony  that  he  served  citations 
is  considered  full  proof  of  the  fact.  Several  messen- 
g-ers  may  be  appointed.     Following-  is  the  form: 

"N.  Bishop  of  N.  To  our  Beloved  N—  &c. 
Wishing-  to  provide  our  episcopal  court  with  a  proper 
messeng'er  who  will  fulfill  his  duties  with  fidelity 
and  alacrity  and  having-  confidence  that  you  possess 


78  LEGAIv    FORMULARY. 

these  qualities,  we  by  these  present  letters  do  choose, 
constitute  and  depute  you  as  a  public  messeno'er  or 
courier  of  our  tribunal,  during-  our  g^ood  pleasure, 
with  the  duties,  privilegfes  and  emoluments  usual  to 
the  office;  g-rauting*  you  all  the  necessary  and  oppor- 
tune faculties  for  exercising*  in  our  whole  diocese 
the  office  of  messeng-er  whenever  you  shall  be  called 
upon,  admonishing"  you  in  the  Lord  to  faithfully  per- 
form your  duties,  and  commanding-  all  to  recog-nize 
and  receive  you  as  such  messeng-er,  under  penalty  to 
be  inflicted  in  proportion  to  the  offense.  In  testi- 
mony whereof,  &c.  Given  at  &c. 
[iv.  s.]  N.  Bishop  of  N. 

N.  N.  Chancellor." 

84.  It  is  not  only  a  rig'ht  but  a  duty  on  the  part 
of  the  bishop  to  demand  an  accounting-  of  those  who 
administer  charitable  institutions  or  pious  places. 
Undoubtedly  he  is  also  entitled  to  supervise  the  ad- 
ministration of  all  parish  finances  and  must  see  that 
church  property  is  devoted  to  its  proper  use.  He 
cannot  himself  devote  time  to  examine  these  various 
accounts,  and  therefore  he  usually  appoints  one  or 
more  auditors  or  examiners  of  diocesan  accounts, 
gfiving-  them  authority  not  onl}^  to  examine  the  an- 
nual statements  sent  in  by  pastors  and  heads  of  in- 
stitutions, but  also  to  examine  the  books  themselves 
from  which  these  statements  purport  to  be  copied. 
It  is  advisable  that  these  auditors  likewise  examine 
the  books  of  the  bishop's  econome  and  report  on 
their  condition  to  the  bishop.  Such  an  auditor  or 
examiner  mig-ht  accompany  the  bishop  on  his  episco- 
pal visitation,  and  at  this  time  or  some  other,  mig-ht 
make  a  comparison  of  the  annual  statements  with 
the  parish  books.  {Cf.  Ill  Cotincil  Bait.  no.  14.) 
This    auditor    may    be    either    a    clerg-yman    or    a 


AUDITORS   OF    ACCOUNTS.  79 

layman  and  must  receive  compensation  from  the 
bishop  if  from  anyone,  for  neither  the  bishop  nor  the 
examiner  can  exact  anything-  whatever  for  the  ex- 
amination of  these  accounts,  no  matter  what  custom 
there  be  to  the  contrary.  The  Sacred  Con^reg-ation 
of  the  Council  has  so  decided.  {Cf.  Monacelli  p.  /, 
/.  /,  /.  /^.)  Should  the  accounts  be  found  incorrect 
or  the  books  in  poor  shape  the  auditor  must  refer  the 
matter  to  the  bishop  or  the  vicar  general  and  cannot 
himself  proceed  against  the  parties  in  fault. 

This  form  may  be  used  for  the  appointment: 

"N.  Bishop  of  N.  To  our  beloved  N.  health  in 
the  Lord  and  g-reeting:  The  duties  of  our  pastoral 
office  require  us  to  see  that  the  goods  and  revenues  of 
churches  and  pious  places  be  properly  administered, 
and  that  their  accounts  at  proper  times  be  examined 
and  audited.  Wherefore  we,  being  occupied  with 
the  g'raver  cares  of  the  episcopate  and  confident  of 
your  fidelity,  prudence  and  experience,  do  by  these 
present  letters  choose,  constitute  and  depute  you 
during  our  good  pleasure  to  be  a  general  examiner 
and  auditor  of  the  accounts  and  the  administration 
of  all  the  churches  and  pious  places  of  both  our  epis- 
copal city  and  the  diocese  which  are  subject  to  either 
our  ordinary  or  our  delegated  jurisdiction ;  giving  you 
full  faculty  and  power  to  cite  all  officials  and  admin- 
istrators, as  the  law  determines,  and  to  compel  them 
under  penalty  to  be  determined  by  us,  to  exhibit  to 
you  their  books  and  receipts  and  all  other  papers 
required  for  a  thorough  examination  and  accounting-. 
You  will,  however,  not  proceed  against  delinquents 
or  those  contemning*  these  letters,  without  previous 
consultation  with  us  or  our  vicar  g'eneral.  In  testi- 
mony,  &c.     Given  &c. 

[iv.  s.]  N.  Bishop  of  N. 

N.  N.  Chancellor." 


PART  SECOND. 


Parishes,   Precedence,    Sacred  Things,   Fac- 
uivTiEs,  Index  Rules,  Edicts,  Property. 


CHAPTER  I. 

PARISH    PRIESTS,    SYNODAL   EXAMINERS   AND 

CONCURSUS. 

86.  Parish  priests  are  the  chief  auxiliaries  of  the 
bishop,  because  the  actual  care  of  souls  is  committed 
to  them.  They  are  truly  pastors,  but  only  of  eccle- 
siastical orig-in,  and  therefore  have  only  a  limited 
jurisdiction,  not  independent  but  subject  to  the  ordi- 
nary of  the  diocese.  Their  jurisdiction  is  also  con- 
fined to  the  internal  forum  and  is  not  contentious. 

He  may  be  called  a  parish  priest  who  in  his  own 
name  exercises  the  care  of  souls,  whether  his  tenure 
be  perpetual  or  only  temporary.  However,  the  coun- 
cil of  Trent,  (sess.  24,  ch.  ij  de  reforrn.)  expressly 
orders  bishops  to  establish  parishes  where  they  do 
not  yet  exist,  and  having  separated   the  people  into 

80 


PARISH    PRIKSTS.  81 

distinct  parishes  to  assig^n  to  each  its  own  f)crf>etual 
pastor  notwithstandin<4-  any  and  every  privilege  and 
custom  to  the  contrar3^  The  Sacred  Con<i-re<^ation 
of  the  Council  insisted  on  June  26,  1875,  and  on 
April  26,  1879,  that  movable  vicars  should  not  be 
appointed,  but  perpetual  vicars  should  be  chosen, 
except  in  the  case  of  churches  served  by  religious, 
which  may  have  movable  vicars.  These  decisions 
apply  to  countries  where  the  hierarchy  is  established; 
but  in  missionary  countries  where  there  are  no  epis- 
copal sees  and  consequently  no  parishes,  the  mission- 
aries must  be  considered  simply  preachers  of  God's 
word,  not  parish  priests.  {S.  Congregation  of 
Propaga  nda  J  a  n  .28,  lySo,) 

87.  According-,  then,  to  the  canons  and  especially 
to  the  idea  of  the  council  of  Trent  a  parish  ma}^  be 
defined,  "a  church  of  some  diocese  desig*nated  by 
authority  of  the  Roman  Pontiff  or  of  the  bishop, 
which  has  a  people  circumscribed  within  determined 
limits  and  a  priest  or  rector  by  whom  the  sacraments, 
the  word  of  God  and  other  spirituals  are  exclusively 
and  officially  administered  to  this  same  people."  A 
church  is  required  as  the  center  of  unity  and  the 
desig"nation  by  the  Roman  Pontiff  or  the  bishop  in 
order  that  there  may  be  certainty  of  the  foundation 
of  the  parish.  {C/\  Can.  11,  causcc  16,  q.  7/  Coic. 
Trid.  sess.  21,  cap.  4.)  A  certain  people  living- 
w^ithin  described  limits  of  the  diocese  is  required. 
{Cf.  Can.  /,  cans,  /?,  q.  i ;  Co?ic.  Trid.  scss.  24,  c. 
I J  de  reform.)  But  this  does  not  necessarily  pre- 
clude two  or  more  parishes  from  having-  the  same 
territory-    if    they   have  a   different  people  either  in 

lang-uag-e  or  in  rite.     For  a  parish  it  is  also  required 
12 


82  IvEGAIv   FORMULARY. 

that  there  be  one  determined  priest  from  whom  alone 
the  people  may  licitly  receive  the  sacraments.  When 
a  moral  person,  as  a  monastry  or  a .  chapter,  is  the 
parish  priest,  a  vicar  must  be  appointed  to  act  for 
it.  As  soon  then  as  these  three  requirements  are 
present  a  true  parish  is  said  to  exist,  and  to  have 
been  canonically  erected.  Kven  if  documents  cannot 
be  produced,  the  very  fact  that  a  certain  people  of 
a  determined  territory  receive  the  sacraments  only 
from  an  appointed  rector  constitutes  presumption  of 
a  canonical  parish.  A  baptismal  font  and  a  ceme- 
tery g-ive  g'ood  but  not  conclusive  proof  that  a  church 
is  a  parish  church,  says  Smalzg^reuber  1.  3,  t.  29,  n. 
5;  but  to-day  a  cemetery  is  not  necessary  for  a  par- 
ish, because  common  burial  i^frounds  are  used  in  many 
of  the  larg"er  cities. 

88.  The  Second  Plenary  Council  of  Baltimore,  n. 
124,  decreed  that  in  all  the  provinces  of  the  United 
States  and  especially  in  the  larg^er  cities  where  there 
are  several  churches,  certain  districts,  like  parishes, 
with  defined  limits  should  be  assigned  to  each  church 
and  that  parochial  or  quasi-parochial  rio-hts  should 
be  ^iven  the  rectors  of  such  churches.  This  decree 
was  put  into  effect,  and  throug-hout  nearly  every 
diocese,  except  probably  those  of  the  west  and  south, 
parish  limits  were  determined  and  by  that  very 
fact  canonical  parishes  were  established  by  the 
bishops  with  the  implied  sanction  of  the  Holy  See, 
and  in  obedience  to  the  council  of  Trent. 
The  rectors  of  such  churches  {Cf.  idem  Cone.  n. 
112.)  when  properly  appointed,  thereby  obtained 
ordinary  pastoral  jurisdiction  over  the  people  living- 
within   the   limits  assigfned   to  their  churches,  and 


PARISHES   IN    UNITED   STATES.  83 

other  priests  (except  the  ordinary)  not  unfrequently 
even  by  diocesan  statutes,  were  excluded  from  ad- 
ministerin«f  within  such  parishes  without  the  consent 
of  the  rectors.  This  is  the  common  practice  throug^h- 
out  most  of  the  United  States  at  the  present  time. 
According  to  the  definition  g^iven  above  it  seems  well 
nig"h  incontrovertible  that  throuf^'hout  most  of  the 
United  States  there  are  canonical  parishes,  for  this 
former  missionary  country  has  an  established  hier- 
archy with  dioceses,  and  these  dioceses  have  by  order 
of  their  bishops  certain  desig^nated  churches  which 
have  each  a  people  within  determined  limits  and  a 
priest  or  rector  by  whom  the  sacraments  and  spirituals 
are  exclusively  and  officially  administered  to  this 
same  people.  DeAngelis,  1.1,  t.  28,  n.  6,  maintains 
the  same  regarding-  our  parishes.  So  also  Pieron- 
tenelli,  Praxis,  tit.  4,  n.  3. 

89.  Undoubtedly  the  bishops  of  both  the  Second 
and  the  Third  Plenarv  Council  wished  to  avoid 
g"rantingf  irremovability  to  the  parish  priests  whom 
they  practically  instituted.  Hence  in  n.  125  of  the 
Second  and  n.  32  of  the  Third  Plenary  Council 
they  say:  "In  using-  the  terms  parochial  rig-hts, 
parish  and  parish  priest,  we  do  not  intend  to  g-rant 
to  the  rector  of  any  church  the  rig^ht,  as  they  say, 
of  irremovabilit3%  or  to  diminish  in  an}^  way  that 
power  which  from  the  received  discipline  in  this 
country  the  bishop  has  of  depriving-  any  priest  of  his 
charg-e  or  transferring-  him  elsewhere.  But  we 
admonish  and  exhort  bishops  not  to  use  this  rig-ht 
except  for  g-rave  causes  and  with  due  reg-ard  for 
merit."  By  excepting-  irremovability  they  conferred 
all   other   ri«-hts.      Moreover,    the  council   of   Trent 


84  LEGAL    FORMULARY. 

orders  bishops  to  establish  parishes;  hence  any  and 
every  act  of  theirs  looking-  to  the  fulfilment  of  this 
law  must  be  widely  interpreted,  favorable  to  the 
law,  not  aofainst  it. 

It  was  with  this  same  mind  that  in  n.  24  of  the 
same  Third  council  the  bishops  say:  "Ut  ig-itur 
mentem  sacrosanctae  synodi  sequamur,  quamdiu 
parochial  canonice  erecta^  uon  sint,  constituant  sin- 
^uli  episcopi  examinatores  pro  concursibus  ad 
rectoratus  irremovibiles."  They  seemed  to  take  for 
granted  that  in  a  canonically  erected  parish,  the 
pastor  is  necessarily  irremovable  and  this  rig"ht  they 
wished  to  exclude  from  the  movable  rectorships; 
hence  they  incidentally  asserted,  without  determin- 
ing* the  matter  ex  f>rofesso,  that  as  long-  as  all  par- 
ishes were  not  established  with  this  full  rigfht  of 
irremovability,  still  the  clerg-y  should  be  examined 
for  appointments  to  certain  irremovable  rectorships. 
The  explanation  is  plain.  The  bishops  were  willing" 
to  put  upon  the  rectors  all  the  duties  of  parish 
priests  and  to  g-ive  them  all  the  rig"hts  of  them,  ex- 
cept that  of  perpetuity  of  tenure,  which  the  Holy 
See  urgfed,  and  which  the  council  of  Trent  expressly 
orders,  but  which  the  discipline  introduced  by  the 
bishops  in  missionar}^  times  excluded.  On  the  sup- 
position that  perpetuity  of  tenure  is  of  the  essence  of 
a  parish,  the  bishops  constantly  endeavored  to  assert 
that  parishes  have  not  been  canonically  erected  in  the 
United  States.  But  under  the  supposition  that  a 
canonical  parish  is  possible  without  necessarily  im- 
plying" perpetuity  of  tenure,  there  seems  no  doubt 
whatever  that  even  many  "movable  rectorships"  are 
true  parishes,  and  that  their   pastors  if  properly  ap- 


PARISPIES   IN    UNITED    STATES.  85 

pointed  have  all  parish  ri^rhts  except  perpetuity  of 
tenure  or  irremovability.  [Cf.  Boidx,  De  Parocho, 
pag-e  20 1- 1 2, y,  Craisson^  Mamuilc,  n.  532.)  As  a 
matter  of  fact  and  law  the  S.  Con^-.  of  Prop,  on 
Nov.  8,  1882,  declared  that,  "Amovability  <^/^/ ;?///^^;;^ 
is  not  in  itself  a  siijfn  that  parish  ricrht  is  lackin^r." 
(C/.  Collect,  n.  212^  -pg-.   jgj) 

The  expression  in  n.  24  of  III  Plen.  Council  of 
Baltimore  "Quamdiu  parochial  canonice  erecta?  non 
sint"  is  not  a  universal  ne<jfative,  nor  does  it  say 
there  are  with  us  no  parishes.  If  such  a  meanino- 
were  intended,  the  assertion  would  be  false  in  fact; 
for  the  Fathers  of  the  Council  knew  and  admitted 
that  there  were  canonically  erected  parishes  at  least 
in  New  Orleans,  and  in  the  province  of  San  Fran- 
cisco and  in  the  city  of  Detroit.  The  II  Plen.  Coun- 
cil of  Bait.  n.  108  admitted  the  parish  in  New 
Orleans;  and  in  n.  340  mentioned  the  parish  of  De- 
troit. The  learned  Sabetti  in  his  Moral  Theolo.ffv 
n.  710,  q.  3,  says  that  the  pastors  of  some  churches 
in  the  province  of  San  Francisco  are  obliged  on  the 
appointed  days  to  apply  their  mass  for  their  parish- 
ioners; still  he  seems  in  the  same  number  and  else- 
where to  consider  the  above  passa«"eof  the  Third  coun- 
cil'las  quite  conclusive  proof  that  there  are  no  canon- 
icall}^  erected  parishes  in  the  United  States.  The 
passa»"e  of  the  Third  council  in  view  of  admitted  facts 
and  the  decrees  of  the  First  and  Second  councils 
which  authorized  the  establishment  of  districts  and 
churches  and  exclusive  rectors,  seems  of  little  force 
in  settling*  the  question  whether  or  not  there  are 
parishes  in  the  United  States.  Moreover  a  cursory 
assertion  is  only  as  valuable  as  the  facts  on  which  it 


86  LEGAL    FORMULARY. 

is  based.  It  cannot  make  the  facts.  Too  much  is 
attempted  to  be  proved  by  this  passage;  therefore 
nothing  is  proved.      {Cf.  note  p.  2jj  b^lozv.) 

Ten  years  before  the  celebration  of  the  III  Coun- 
cil of  Baltimore,  the  First  Provincial  Council  of  San 
Francisco,  held  in  1874,  in  decree  16  declares  explic- 
itly that  there  are  in  that  province  certain  canonically 
erected  parishes;  and  insists  that  both  pastors  and 
people  therefore  comply  with  their  respective  duties. 
Hence  the  casual  assertion  of  the  III  Council  of  Bal- 
timore cannot  have  much  weight  in  law  to  prove 
there  are  no  parishes  in  the  United  States. 

Moreover  the  argument  drawn  from  the  III  Coun- 
cil of  Baltimore  is  based  simply  on  a  narrative  pas- 
sage; and  it  is  a  well  known  principle  of  law  "E)x 
narrativis  non  valet  argumentum."  {Pyrrh.  Corr. 
Praxis,  I.  J,  c.  /,  J.)  Finally  the  S.  Cong,  of  the 
Propaganda  which  never  does  things  thoughtlessly 
or  uselessly,  has  granted  the  bishops  of  the  United 
States  in  no.  4  of  Form  C  the  faculty  of  permitting 
parish  priests  subject  to  them  to  abstain  for  good 
reason  from  applying  their  mass  for  their  people 
on  suppressed  feasts.  Now  if  there  are  no 
parishes  in  the  whole  United  States  what  sense  is 
there  in  this  act  of  Rome?  These  special  faculties 
are  given  to  bishops  with  a  thorough  knowledge  of 
the  needs  of  the  country  in  which  they  are  to  be  used. 
Hence  different  forms  are  given  for  different  coun- 
tries. The  bishops  of  Canada  (form  T),  of  Ireland 
(form  VI),  of  Germany,  Austria,  Poland,  Russia, 
Belgium  (form  III),  of  France  (form  X)  and  prefects 
apostolic  (form  IV)  and  the  bishops  of  I^^ngland  and 
Scotland   (form  II,   which,   except   in  n.  2,   4,   5  and 


PARISHES   IN    DETROIT    DIOCESE.  87 

12,  ib  the  same  as  form  I)  receive  special  faculties 
appropriate  for  those  countries.  The  bishops  of  the 
United  States  receive  special  extraordinary  faculties 
in  Form  C  which  contains  that  re^ardin^  parish 
priests.  Could  the  Holy  See  do  such  a  senseless 
thing-  as  give  bishops  a  faculty  they  can  never  use? 
This  would  be  farcical  and  impossible.  Therefore 
the  Holy  See  recognizes  that  there  are  parishes  in 
the  United  States.  This  doctrine  is  taught  by  the 
professors  of  law  and  others  in  Rome,  among  whom 
were  Santi,  De  Angelis  and  at  present  Pierontonelli. 
Hence  when  the  learned  Putzer  (comment  113,  2) 
says  we  have  no  benefices  or  parishes  because  also 
irremovable  rectors  hold  their  parishes  and  adminis- 
ter them  j'zere  delag'ato,  he  simply  begs  the  question. 
In  the  United  States  at  least  irremovable  rectorships 
may  be  considered  parishes  administered  jure  ordi- 
nario  as  shown  above. 

It  is  certain  that  parishes  have  been  established 
in  the  Diocese  of  Detroit,  for  the  late  Bishop  Borgess 
so  intended  and  decreed  in  his  synodal  constitutions 
of  1886,  and  the  decree  establishing  parishes,  once 
issued,  cannot  be  revoked.  Personally  I  am  sure  of 
the  mind  and  intention  of  the  bishop,  for  as  fiscal 
procurator,  at  his  special  mandate  I  drew  up  the 
decrees,  and  w^hen  the}'  were  presented  to  him  for 
approval,  decree  n.  6  was  specially  discussed  and  its 
extension  and  effect  fully  appreciated  as  designating 
parishes.  The  onl}'  reservation  the  bishop  desired 
made  was  regarding  irremovability.  He  first  intended 
inserting  some  words  to  that  effect  in  decree  n.  6; 
but  later  decree  n.  11  was  inserted,  reserving  the 
one  right  of   irremovabilit}^     The   originals  of  the 


88  IvEGAIv    FORMULARY. 

decrees  with  the  notes  of  the  bishop  are  still  in  my 
possession.  The  bishop  himself  officially  published 
these  decrees  Sept.  15,  1886,  after  the  III  Council 
of  Baltimore.     Following'  are  the  two  decrees: 

No.  6.  "Civitates,  pra^sertim  in  quibus  plures 
reperiuntur  ecclesiae,  sed  et  omneni  dioecesim  in  dis- 
trictus  quosdam  dividendas,  ordinis  causa  censuimus, 
divisasque  declaramus;  juribus  tributis  eorum  rec- 
toribus,  ut  scilicet  ii  vel  eorum  vicarii,  sacramenta 
baptismi,  matrimonii,  extremae  unctionis  et  viatici, 
jus  habeant  ministrandi,  illis  qui  mirdi  pcn'ccciarion 
suaruni  limites  deg'unt;  nee  alius  quicunque  sacerdos, 
sive  s^cularis  sive  reg^ularis,  possit  leg"itime  se  iis 
ministrandis  ing-erere  absque  Nostra  vel  parochi 
ipsius  licentia." 

Decree  7  forbids  interference  with  the  pastor's 
rig-hts;  decree  8  makes  it  obligatory  for  a  priest,  who 
has  administered  sacraments  to  another  pastor's 
parishioners,  to  forthwith  turn  over  to  the  pastor  all 
offerings,  and  decree  9  orders  all  people  to  apply  for 
sacraments  to  their  own  pastor.  Decree  10  makes  it 
a  duty  for  pastors  to  attend  the  charitable  institu- 
tions situated  within  their  parish  limits.  Decree  11 
is  as  follows: 

"Parochialis  juris,  paroecise  et  parochi  nomina 
usurpando,  nullatenus  intendimus  ecclesise  cujuslibet 
rectori  jus,  ut  aiunt,  inamovibilitatis  tribuere,  nisi 
prout  in  Concilio  Plenario  III  Baltimorensi  statutum 
est  de  rectoribus  inamovibilibus  posthac  constituen- 
dis;  quibus  exceptis  missionarii  rectores  onines  ad 
nutum  sunt  amovibiles."  Irremovable  rectors  were 
appointed  in  1890  in  a  meeting-  of  the  diocesan  clerg-y 
and    the   synodal   decrees   of    1886   were   confirmed. 


PARISHES   IN    DETROIT    DIOCESE.  89 

Decree  12  adds,  "Cum  rectorlbus  ecclesiarum  ciira 
animaruin  commissa  sit,  sacerdotes  assisteutes  seu 
vicarii,  quibusdam  ecclesiis  ab  Episcopo  adsig-nati, 
iisdem  in  omnibus  quai  ad  cultum  divinum  spectant 
subesse  et  obedire  debent,  &c." 

So  careful  was  Bishop  Borg'ess  on  this  matter  that 
a  copy  of  the  synodal  constitutions  of  1886  was  sent 
for  record  to  the  S.  Con«-reg"ation  of  the  Propag-anda, 
that  there  mig-htbe  no  question  in  the  future  re^^ard- 
inof  his  action  in  this  matter.  Limits  were  defined 
between  parishes  and  are  well-known  to-day.  From 
the  official  acts  'of  Bishop  Borg'ess  it  is  absolutely 
certain  that  parishes  have  been  canonically  erected 
in  the  diocese  of  Detroit.  It  will  be  noticed  by  com- 
paring" the  above  decree  n.  6  with  the  II  Council 
of  Baltimore  that  the  words  '^parochiariun  i)isiar'" 
"juribus  quasi  -parocliialibus'''  which  are  found  in 
the  Baltimore  Council  and  some  diocesan  statutes 
have  been  purposely  omitted  from  the  Detroit  de- 
cree, thus  explicitly  g^iving-  full  parochial  rig'hts  and 
making"  real  parishes  instead  of  quasi-parishes. 

90.  The  Third  Council  of  Baltimore,  in  n.  33, 
while  claiming"  that  for  the  present  it  is  still  impossi- 
ble to  carry  into  effect  all  the  prescriptions  of  the 
council  of  Trent  reg"arding"  parishes,  especiall}"  the 
perpetuity  of  tenure,  nevertheless  by  order  of  the 
Holy  See  explicitly  granted  this  perpetuity  and  irre- 
movabilitv  to  certain  rectors.  It  seems  sure  that  at 
least  the  rectors  thus  desig"nated  must  be  considered 
true  parish  priests;  for  their  parish  churches  and 
people,  as  well  as  themselves,  have  been  explicitly 
desig"nated   by  the  bishop,    under  instructions   from 

the  Holy  See,  and  the  rig'ht  of  irremovability  canon- 
13 


90  LEGAL    FORMULARY. 

ically  conceded.  The  "Cum  magfnopere,"  n  45,  terms 
them  irremovable  parish  priests  or  rectors. 

Moreover  perpetuity  of  tenure,  as*  well  as  other 
parish  rig^hts,  is  not  a  g'ratuitous  and  spontaneous 
concession  of  the  bishops,  but  comes  from  the  very 
law,  which  determines  that  benefices,  even  such  as 
our  rectorships,  must  be  conferred  not  for  a  time  or 
manually,  but  perpetually  and  irrevocably.  When 
therefore  the  bishops  of  the  Second  and  Third  Ple- 
nary Councils  of  Baltimore  stated  that  they  did  not 
intend  to  confer  the  right  of  irremovability  on  all 
rectors,  they  must  be  understood  to  say  this,  not  as 
if  they  could  changfe  the  common  law,  but  as  acting- 
with  the  tacit  consent  of  the  Holy  See  which  was 
pleased  not  to  correct  such  a  practice  for  the  time 
being-.  (6/.  DeAng-elis,  Pra'lectiones,  lib.  j,  t.  2g, 
n.  j;   Cone.  Trid.  sess.  24,  c.  ij,  dercf.) 

91.  Since  only  the  Holy  See  in  the  plentitude  of 
its  authority  can  authorize  that  benefices,  particu- 
larly having"  the  charg-e  of  souls,  may  be  conferred 
temporarily  when  the  law  distinctly  requires  that 
they  be  conferred  perpetually,  it  is  evident  that  no 
bishop,  without  special  authority  and  permission  of 
the  Holy  See  can  lawfully  appoint  pastors  who  shall 
be  movable  ad  uutum.  For  this  reason  the  bishops 
of  France  and  Belg^ium,  after  the  Napoleonic  wars 
and  the  consequent  chang-e  in  parishes,  wished  to 
have  their  practice  of  appointing-  movable  rectors  to 
certain  parishes  approved  by  the  Holy  See.  After 
carefully  considering- the  circumstances,  on  Mayl, 
1845,  the  Sovereig-n  Pontiff  decreed  that  no  chang-e 
should  be  made  until  otherwise  provided  by  the  Holy 
See.     {^S.  Cong.  Coiicilii,  in  Leodiensi,  i  Mali,  184.^.') 


WHO   HOLDS    TITLE   OF    PARISHES.  91 

Thus  there  are  in  Prance  and  Belo"iuni  two  classes 
of  parish  priests,  one  succursal  and  movable,  the 
other  practically  irremovable.  The  same  is  true  of 
the  United  States  to-day.  There  are  two  classes  of 
rectors,  movable  and  irremovable. 

92.  As  soon  therefore  as  a  bishop  has  desiofnated  a 
church  and  assig^ned  to  it  a  people  within  certain 
limits  and  g-iven  a  certain  and  sole  rector  to  it,  then, 
according-  to  the  council  of  Trent,  cap.  13,  sess.  24 
de  reform.,  is  had  a  canonically  erected  parish. 
These  requirements  being-  present,  the  law  itself, 
not  the  will  of  the  bishop,  determines  that  there  is 
a  canonical  parish,  or  parochial  benefice.  However, 
the  bishop  either  confers  this  parish  on  some  one  as 
a  title,  and  then  the  position  of  the  incumbent  is  per- 
petual under  the  canons  and  he  is  said  to  be  a  true 
parish  priest  and  a  true  beneficiary;  or,  on  the  other 
hand,  the  bishop  while  himself  retaining*  the  titles  of 
parishes  once  constituted,  g-ives  only  the  administra- 
tion of  them  to  certain  priests,  who  in  this  supposi- 
tion are  either  perpetual  or  temporary  vicars.  To 
the  first  class  being*  irremovable  rectors,  for  the 
bishop  confers  on  them  not  only  the  administration 
but  the  title  of  their  parishes  after  being-  found 
worthy  throug-h  concursus.  To  the  second  class 
may  belong-  some  if  not  all  movable  rectors  of  par- 
ishes. This  will  depend  on  their  letters  of  appoint- 
ment, (which  should  be  carefully  drawn  and  specify 
whether  or  not  the  priest  is  only  a  vicar)  and  on  the 
tolerance  of  the  Holy  See  in  allowing-  bishops  for  a 
while  long-er  to  continue  this  exceptional  discipline. 
Bishops  have  the  rig-ht  to  appoint  incumbents  of 
movable  rectorships  real  parish   priests  by  their  let- 


92  LEGAL    FORMULARY. 

ters,  and  the  presumption  of  law  is  that  also  movable 
rectors  are  parish  priests;  hence  the  contrary,  if  in- 
tended, must  be  stated  in  each  appoi-ntment.  Irre- 
movable rectors  have  canonical  institution,  but  tem- 
porary vicars  have  only  a  deputation  or  appointment. 
Irremovable  rectors  can  be  moved  only  for  canonical 
causes  and  after  trial.  Temporary  vicars  in  the 
United  States  may  be  moved  by  the  bishops  "for 
ofrave  reasons  and  with  proper  consideration  for 
merit,"  and  this  without  trial  unless  the  reasons 
constitute  crime  and  the  removal  would  be  a  punish- 
ment. Before  a  movable  rector  or  temporary  vicar 
is  removed  as  a  punishment  or  deprived  of  his  office 
he  must  be  g-iven  a  trial  according-  to  "Cum  mag^no- 
pere."  {Cf.  S.  Cong",  de  Prop,  responsa  ad  dithia 
March  28^  iSSy.)  It  should  always  be  remembered 
that  against  the  decree  of  the  bishop  removing  a 
movable  rector  or  temporary  vicar  there  is  no  appeal, 
but  only  a  recourse  and  that  the  removed  cleric 
must  vacate  the  office  until  restored  by  the  higher 
authority.  Recourse  may  be  made  to  the  Apostolic 
Delegation  at  present  instead  of  the  Propag^anda. 
The  reason  why  there  is  only  a  recourse  is  that  the 
position  of  temporary  vicars  is  not  determined  in  law, 
and  hence  there  is  no  ordinary  remedy,  but  only  an 
extraordinary  one  because  of  a  certain  unwritten, 
natural  equity.  The  bishop  is  not  oblig^ed  to  g"ive  his 
reasons  to  the  removed  rector,  but  only  to  the  author- 
ity to  whom  recourse  is  had.     {Cf.  n.  106,  below.) 

93.  The  division  of  the  diocese  into  parishes, 
according  to  the  canons  and  especially  the  council 
of  Trent,  was  ordered  for  the  better  and  safer  g^ov- 
ernment   of  souls  and    to   afford    the   bishop  certain 


BISHOPS    AND   PARISH    PRIESTS.  93 

determined  assistants  compelled  by  reason  of 
their  office  to  assist  him  in  the  care  of  souls.  Hence 
parish  priests  must  acquire  this  participation  from 
the  bishop  or  the  Sovereign  Pontiff  and  no  one  else 
can  o-ive  them  authoritative  institution.  But  the 
bishop's  authority  is  not  lessened  by  such  participa- 
tion, for  whatever  the  parish  priest  can  do  the 
bishop  also  can  do,  because  he  does  not  cease  to  be 
the  ordinary  of  that  part  of  his  flock.  However, 
g-ood  policy  sug-g-ests  that  he  should  not  interfere 
indiscriminately  in  parish  work,  for  undoubtedly 
episcopal  duties  differ  from  parochial  work,  and 
supervision  differs  from  concurrent  .labor.  Parish 
priests  have  participant  jurisdiction,  not  in  the  exer- 
cise of  the  episcopal  order  nor  in  the  external  forum, 
but  in  the  administration  of  all  other  sacred  thing's, 
in  reg*ard  to  the  people  belong-ing*  to  their  parish. 
(6/.  De  Ang-clis^  I.  j,  /.  29,  ;^.  ^:  Berardiis  I.  c.) 
Further,  parish  priests  are  said  to  be  placed  b}'  law, 
because  it  is  a  precept  of  ecclesiastical  law  that  a 
diocese  be  divided  into  parishes  and  that  parish 
priests  be  assig^ned  to  them,  and  secondly  because 
their  authority  is  determined  by  law  and  therefore 
is  said  to  be  ordinary.  For  this  reason,  says  De 
Ang"elis,  1.  3,  t.  29,  n.  4,  it  is  admitted  that  parish 
priests  can  sub-deleg"ate  this  authorit3%  either  for 
certain  acts  or  ad  iinivcrsitateni  ccnisariim,  by  ap- 
pointing* assistants  with  the  approval  of  the  bishop. 
Agfain,  since  parish  priests  receive  jurisdiction  from 
the  law,  a  bishop  cannot  stop  the  exercise  of  this 
jurisdiction  by  merely  "withdrawing-  faculties,"  as  it 
is  called.  The  bishop  can  in  this  way  onl}'  withdraw 
what  he  g'ave  voluntarily,  but    he  cannot  thus  with- 


94  LEGAIv   FORMULARY. 

draw  what  the  law  g"ave.  He  must  for  this  purpose 
properly  suspend  the  incumbent  and  specify  exactly 
the  extent  of  the  suspension. 

•  94.  The  council  of  Trent,  sess.  21,  c.  4,  de  re- 
form., enacts  that  when  a  parish  priest  cannot  alone 
attend  to  the  spiritual  wants  of  his  parishioners,  the 
bishop,  also  as  the  delegate  of  the  Holy  See,  is  g^iven 
power  to  compel  the  rector  to  employ  as  many  as- 
sistants as  will  suffice  to  attend  the  people.  Con- 
cerning- these  assistants  Pope  Innocent  III  issued  a 
bull  '^ Afostolici  Ministerii'''  which  Benedict  XIII 
ordered  observed,  to  the  effect  that,  "the  bishop  shall 
determine  the  portion  of  the  parish  revenues  which 
shall  be  assigned  for  the  maintenance  of  the  assistant, 
with  proper  regfard  for  circumstances.  And  if  the 
parish  priests  after  warning  by  the  bishop  neglect  to 
engag-e  assistants,  the  bishops  themselves  may  then 
appoint  such  assistants  as  they  deem  fit  and  assign 
them  competent  support  from  the  parish  revenues. 
Nevertheless  when  the  parish  priests  have  selected 
their  assistants,  before  they  are  admitted  to  act  their 
fitness  must  be  determined  by  an  examination.  If 
rejected  as  unfit  by  the  bishop,  the  parish  priests 
must  select  others,  or  in  default  the  bishop  will  ap- 
point." From  which  text  it  follows  plainly  that  the 
parish  priest  may  choose  his  own  assistants  when 
needed;  but  when  a  vicar  is  appointed  because  of  a 
fault  in  the  pastor,  for  instance,  if  he  is  suspended 
ex  inforniata  cojiscicntia,  then  the  nomination  de- 
volves on  the  bishop.  {S.  Cong-.  Cone.  4..  Mali 
1737.)  2vitelli,  who  wrote  his  Af^aratus  Juris  Ecele- 
siastiei  especially  for  the  United  States  and  similar 
countries,  and  who  at  the  time  was  the  official  of  the 


ASSISTANT    TO    PARISH    PRIEST.  95 

Propao-anda,  distinctly  lays  down  the  same  doctrine 
on  pao;"e  187,  where  he  says,  "the  nomination  of  tem- 
porary assistants  belongs  to  the  pastors,  but  the 
examination  and  approval  of  them  pertains  to  the 
bishop."  There  is  no  law  which  reverses  the  com- 
mon law  for  the  United  States.      Hence  it  holds. 

95.  This  seems  but  proper,  especially  considerinof 
that  the  pastor  is  really  responsible  for  his  parish 
and  that  he  has  ordinary  ri";  ht  to  it  by  law.  A^ain, 
since  usually  in  the  United  States  the  assistants  live 
in  the  same  house  as  the  pastor,  he  should  be  allowed 
to  determine  who  shall  belon«-  to  his  household,  who 
shall  eat  at  his  table.  For  these  reasons  w^hatever 
may  be  held  concerning-  the  nomination  of  assistants 
to  a  parish  priest,  it  ^ems  certain  that  he  may 
object  to  receiving-  into  his  house  or  retaining-  there- 
in any  assistant  who  is  personally  offensive;  nor  can 
the  bishop  impose  such  assistants  upon  him,  except 
according-  to  the  bull  above  quoted.  DeAng-elis  lib. 
3,  t.  5,  n.  27,  says  that  in  parts  of  France  and  ad- 
joining- countries,  where  g'enerally  assistants  live 
separate  from  the  pastor,  a  departure  has  been  in- 
troduced from  the  practice  of  parish  priests  naming- 
their  assistants.  There  the  bishops  appoint  and  re- 
move them  without  hearing-  the  pastors.  But,  he 
says,  this  is  because  of  the  special  manner  of  adniin- 
tering-  these  dioceses  in  which  the  bishop  alone  is 
responsible  for  the  support  of  his  clergy  and  must 
sustain  them  himself  until  he  provides  them  with 
some  office.  He  adds  that  this  practice  which  by 
long  custom  and  the  tacit  consent  of  the  Holy  See 
may  be  licit  in  a  certain  place,  should  not  and  can- 
not be  introduced  in  other  places  against  the  canons. 


%  LEGAL    FORMULARY. 

Craisson,  however,  who  was  a  vicar  general  in 
France,  does  not  sustain  an}^  such  custom,  but  in  his 
Mannale,  nos.  ^o^g  and  133 J  lays  down  the  law  that 
the  pastor  may  choose  his  own  assistants.  Bouix, 
De  Parocho,  pag'e  42'/,  maintains  the  same  ri^lit  for 
the  pastor.  The  S.  C.  Cone,  in  Melit.  7  June,  1692 
decided  that  the  parish  priest,  not  the  bishop,  has 
the  rig-ht  to  appoint  a  deputy  to  have  charg^e  of  the 
parish  in  the  absence  of  the  pastor. 

96.  There  is  a  g^reat  difference  between  an  assist- 
ant and  a  coadjutor.  The  pastor  chooses  the  former, 
but  the  latter  is  a  priest,  who  is  assig"ned  by  the 
bishop  for  reasons  determined  by  law  to  assist  the 
pastor  in  the  exercise  of  the  care  of  souls.  The 
reasons  for  appointing"  a  coadjutor  are:  Long- con- 
tinued ill  health  of  the  pastor  in  body  or  mind,  the 
defect  of  sufficient  knowledg-e,  provision  during-  the 
pastor's  suspension  for  a  fault.  The  larg-e  number 
of  parishioners  is  not  a  leg-al  reason  why  the  bishop 
may  appoint  a  coadjutor,  but  only  a  reason  why  he 
may  compel  the  pastor  to  select  an  assistant.  A 
suspensive  appeal  will  lie  ag"ainst  the  bishop's  de- 
cree appointing-  a  coadjutor  to  a  pastor  because  of 
his  ill  health;  but  only  a  devolutive  appeal  if  the 
coadjutor  is  appointed  because  of  defective  knowl- 
edg-e, since  the  council  of  Trent  so  declared  for  this 
latter  case. 

97.  Parish  priests  have  both  oblig-ations  and  rig-hts. 
The  council  of  Trent  decrees  that  a  parish  priest 
must  make  a  profession  of  faith  before  the  bishop  or 
his  vicar  g-eneral  within  two  months  from  his  ap- 
pointment. This  applies  to  those  pastors  who  are 
movable  ad  nutum  as  well  as  to  those  irremovable. 


DUTIES   OF    PARISH    PRIESTS.  07 

They  are  also  bound  to  reside  within  their  parishes, 
and  in  the  rectory  if  there  is  one.  If  a  priest  has 
two  parishes  united,  he  must  reside  in  the  more 
worthy.  However,  the  council  of  Trent  allows  that 
when  there  is  a  canonical  cause  the  bishop  may  o-rant 
the  parish  priest  leave  of  absence,  provided  he  leave 
a  competent  vicar  to  take  his  place  and  assign  him 
proper  compensation. 

The  parish  priest  is  oblig*ed  also  to  offer  sacrifice, 
preach  and  administer  the  sacraments  for  his  people. 
All  those  who  have  a  pastoral  title  are  obliged  to 
say  mass  and  apply  it  for  the  people  committed  to 
them.  Thus  bishops  for  their  diocese,  and  all  for 
their  charg-e,  who  possess  a  benefice  with  the  cure  of 
souls,  that  is,  parish  priests  by  whatever  name  they 
may  be  called.  They  also  are  under  this  oblig-ation 
who  are  actually  in  charg-e  or  administer  a  parish 
that  is  either  vacant  or  the  habitual  care  of  which  is 
in  another,  which  is  claimed  by  some  to  be  the  con- 
dition of  our  movable  rectors.  Such  also  are  vicars 
of  parishes  either  perpetual  or  temporary.  All  these 
are  obliored  to  apply  their  mass  for  their  people  on 
Sundays  and  feasts  of  oblig-ation  even  those  now 
suppressed.  Missionary  priests  are  not  obliged  to 
apply  their  mass  for  their  people,  except  those  wdio 
take  the  place  of  pastors  in  those  places  where  epis- 
copal sees  and  parishes  have  been  canonically 
erected.       (S.    C.    Prop,    March    28,    i,Soj.    jMarch 

2:?,   1863.) 

98.   Pastors  are  also  obliged  to  preach  and  instruct 

their  people,  old  and  young.     Neither  should  they 

allow  any  others  to   preach  in   their  church  unless 

they  know  them  either  personally  or  by  letters  of  the 
11 


98  LKGAL    FORMULARY. 

bishop.  A  pastor  is  also  bound  to  administer  the 
sacraments  to  his  parishioners  not  only  from  charity 
but  from  justice.  He  is  also  oblig'ed'to  keep  record 
books  for  baptisms,  marriag-es,  deaths  and  a  book 
de  statu  animaruyn^  as  well  as  proper  account  books 
for  temporal  matters. 

99.  The  rio'ht  of  administering  baptism  pertains 
exclusively  to  the  pastor,  except  in  case  of  necessity, 
and  no  other  priest  can  licitly  confer  it.  The  same 
holds  true  of  holy  communion  by  way  of  viaticum, 
and  at  I^aster  time,  as  well  as  the  first  communion 
of  children.  The  last  sacraments  must  be  adminis- 
tered by  the  pastor,  and  the  solemni^^ation  of  mar- 
riages also  pertains  to  him  alone.  Certain  blessings 
are  reserved  for  him,  as  the  blessing  of  ashes,  palms, 
candles,  the  baptismal  font  and  the  celebrating  mass 
on  Holy  Thursday;  but  in  all  these  cases  he  may 
delegate  others.  Funerals  likewise  belong  to  the 
parish  priest  to  conduct,  and  offerings  therefor  are 
his  by  law.  What  formerly  were  personal  tithes, 
but  now  are  called  jura  stoke  off-erings,  must  go  to 
the  pastor  of  the  person  receiving-  the  sacraments. 
These  two  principles  are  laid  down  by  law:  personal 
tithes  ov  jura  stoke  must  be  paid  by  all  the  faithful 
to  the  pastor  from  whom  as  subjects  they  must  re- 
ceive the  sacraments,  unless  they  are  specifically 
exempt;  and  those  who  do  not  pay  their  tithes  or 
dues  to  their  pastor  commit  a  mortal  sin,  as  do  also 
those  who  impede  others;  and  according  to  Sess.  25, 
c.  12  of  the  council  of  Trent  they  are  to  be  excom- 
municated and  cannot  be  absolved  until  they  have 
satisfied.  (6/.  DeAiig-elis,  I.  j,  t.  jo,  n.  4.)  The 
Sacred  Penitentiary  has  recently  rendered  a  decision 


SUPPORT    OF    PASTORS.  99 

to  this  same  effect,  which  by  some  has  been  applied 
to  the  payment  of  pew  rent  or  dues  to  the  church  as 
well  as  jura  stolce  to  the  pastor.  They  maintain 
that  the  fifth  precept  of  the  church  imposes  an  obli- 
g"ation  of  justice,  which  must  be  satisfied  before  ab- 
solution can  be  g'ranted.  They  further  contend  that 
a  pastor,  in  justice  to  his  successor,  may  not  incon- 
siderately remit  these  oblig*ations  due  by  each  and 
all  of  the  faithful,  but  that  he  is  bound  prudently  to 
enforce  them.  Whether  such  policy  is  proper  is  left 
for  others  to  decide. 

The  S.  C.  Prop.  May  13,  1816,  replied  to  the 
Bishop  of  Bardstown  that  "the  faithful  are  bound 
in  conscience  to  provide  sufficient  support  for  the 
ministers  of  the  church.  But  it  is  unworthy  of  an 
ecclesiastic  and  a  matter  meriting  adimadversion  to 
refuse  sacred  thing's  and  even  baptism  to  those  who 
decline  to  submit  themselves  to  the  debt  of  offering's." 
{Cf,  Collect,  f).  82,  n.  22^.) 

The  administration  of  the  temporal  affairs  of  a 
parish  belong-s  to  the  pastor;  he  only  is  held  respon- 
sible. He  may  for  safety  have  others  associated 
with  him,  but  the  law  holds  the  pastor  for  an  ac- 
counting*. Prom  the  revenues  he  must  assign  a  com- 
petent support  for  his  assistants  if  he  has  any.  In 
the  United  States  §300  a  year  and  board  is  the  usual 
allowance  for  an  assistant,  with  of  course  full  con- 
trol over  his  intcntioues  mauualcs.  But  by  law  an 
assistant  is  not  entitled  to  any  perquisites.  In  some 
dioceses  an  arrang^ement  has  been  made  in  synod, 
specifying  a  division  of  revenues.  When  ordained 
tihilo  niissionis  a  priest  is  entitled  to  cong*ruous  sup- 
port from   his  diocese   and  from    the  bishop   who  or- 


100  LEGAL    FORMULARY. 

dained  or  incardinated  him.  He  can  insist  on  this 
rig-ht  before  the  ecclesiastical  courts;  but  when  ap- 
pointed to  a  parish  he  can  make  no  further  claim  on 
the  bishop,  unless  the  revenues  are  entirely  insuf- 
ficient. The  civil  courts  do  not  hold  the  bishop  re- 
sponsible for  the  priest's  salary.  {Rose  vs.  Vertin^ 
46  Mich.  ^57.      Tiiigg"  vs.  SJiceJian^  loi  Penn.  j6j.) 

100.  In  the  United  States,  at  the  present  time, 
there  are  no  reserved  parishes,  nor  any  with  j'tis 
^atro7iatus .  The  bishop  of  the  diocese  has  the  free 
collation  of  them  all  whenever  a  vacancy  occurs. 
However,  a  priest  to  be  appointed  to  the  care  of  souls 
should  be  at  least  twenty-five  years  old  and  con- 
spicuous for  virtue,  morality  and  knowledo-e.  The 
council  of  Trent,  elaborated  by  many  apostolic  con- 
stitutions, insists  that  only  those  shall  be  given 
charge  of  parochial  churches,  who  shall  have  been 
found  the  most  worthy  through  a  concursus  and  a 
solemn  examination  of  all  the  candidates  before  at 
least  three  synodal  examiners  together  with  the 
bishop  or  his  vicar  general. 

Prom  the  law  of  concursus  are  exempt:  Churches 
in  which  the  care  of  souls  belongs  to  a  chapter  or  a 
collegiate  body  and  the  actual  charge  is  exercised  by 
a  dignitary,  canon  or  other  cleric;  churches  which 
have  been  resigned  to  the  bishop  or  the  Sovereign 
Pontiff  in  favor  of  a  certain  person  with  a  change  of 
benefice,  and  churches  subject  to  \?i^  jus  ^atronatus. 
Parishes  also  of  very  scant  revenues,  i.  e.,  those 
which  do  not  exceed  (20  aurei  de  camera)  about 
thirty-five  dollars,  after  deducting  expenses;  new 
parishes,  but  only  for  the  first  collation,  and  parishes 
twice  exposed  for  concursus  without  any  candidates 


CONCURSUS   FOR    PARISHES.  101 

applying'.  {Cf.  Santi,  I.  j,  /.  5,  n.  72.)  Still  none 
of  these  should  be  conferred  without  some  examina- 
tion. {Cf.  Reiffenshiel,  I.  ,%  /.  5,  n.  146.)  Only  the 
bishop  may  call  a  concursus,  or  in  case  of  vacanc}^  in 
the  see,  the  vicar  capitular  or  administrator. 

101.  In  the  United  States  a  concursus  is  necessary 
before  the  bishop  may  appoint  a  pastor  to  any  vacant 
irremovable  rectorship.  (///.  Plcn.  Council,  n.  40, 
et  seq.)  A  concursus  is  not  of  necessity  at  present 
before  appointments  to  movable  rectorships,  on  the 
supposition  that  their  incumbents  are  temporary 
vicars,  to  whom  the  title  does  not  pass,  though  they 
actually  perform  the  work,  but  it  remains  in  the 
bishop.  How  long-  this  condition  shall  continue  will 
depend  on  the  tolerance  of  the  Holy  See.  No  one, 
however,  will  question  the  advisability  of  filling-  such 
positions  with  the  best  possible  candidates.  Neither 
is  it  out  of  place  for  priests  to  apply  for  such  posi- 
tions when  vacant,  particularly  if  an  examination  is 
held  before  appointments  are  made. 

102.  A  concursus  is  a  competitive  examination  held 
before  the  bishop  or  his  vicar  general  and  certain 
persons  called  synodal  examiners.  These  examiners, 
at  least  six  in  number,  were  ordered  by  the  council 
of  Trent,  sess.  24,  c.  18,  de  ref.  to  be  proposed  by  the 
bishop  or  his  vicar  g^eneral  in  diocesan  s3^nod  each 
year  and  to  be  such  as  are  satisfactory  to  the  synod 
and  approved  b}^  it.  These  examiners  should  be 
masters  or  doctors  or  licentiates  in  theology  or  canon 
law  or  if  such  cannot  be  had,  then  other  clerg-yman 
secular  or  regular  who  may  seem  best  qualified;  and 
they  are  oblig-ed  to  take  an  oath  to  fulfill  their  duty 
without    any    human    consideration.     They  are    de- 


102  LEGAL    E'ORMUIvARY. 

clared  g"uilty  of  simony  if  on  the  occasion  of  exami- 
nations, either  before  or  after  them,  they  accept  any- 
thing- whatever.  The  election  in  the  synod  should  be 
by  name  and  surname  and  each  person  should  be 
singfly  proposed,  not  all  too^ether,  otherwise  their 
nomination  would  be  null.  {Cf.  Monacelli^  tovi.  /, 
/.  5,  n.  i6.)  Once  appointed  they  hold  office  until 
the  next  synod,  even  thoug*h  the  year  closes  for 
which  they  have  been  chosen.  {S.  Cong-.  Concilii^m 
Iviol.  lo  Dec.  i6g^)  The  Third  Council  of  Balti- 
more, n.  25,  says  that  with  previous  permission  of 
the  Holy  See,  a  bishop  can  choose  examiners  outside 
of  synod,  having-  heard  his  consultors.  Further  if 
by  death,  resig-nation  or  other  cause  a  vacancy  occurs, 
the  bishop  with  the  advice  of  his  consultors  may  fill 
it.  The  examiners  are  to  take  the  oath  before  the 
synod  if  appointed  therein,  and  before  the  bishop  or 
his  vicar  g-eneral  if  otherwise  selected.  At  least 
three  examiners  must  be  present  in  each  concursus. 
They  may  also  be  used  for  the  examination  of  candi- 
dates for  orders,  for  examination,  before  approval  of 
confessors  and  for  the  examination  of  the  junior 
clerg-y. 

103.  The  rules  for  the  concursus  have  been  laid 
down  by  Benedict  XIV  in  his  constitution  Cinn  illud, 
and  are  explained  for  the  United  States  in  the  Third 
Plenary  Council  nos.  40  to  59.  When  an  irremov- 
able rectorship  becomes  vacant,  the  bishop  will  im- 
mediately appoint  an  administrator,  and  later  an- 
nounce the  vacancy  to  the  diocesan  clerg-y  by  calling- 
a  concursus.  He  will  g-ive  ten  days  or  even  twenty, 
for  candidates  to  file  their  applications.  By  special 
faculty  of  the  Holy  See,   g"iven  for  ten  years  from 


RULES   OF    CONCURSUS.  103 

Jan.  6,  1886,  (and  renewed  to  individual  bishops) 
thirty  days  may  be  g-iven  instead  of  the  usual  ten. 
The  vacancy  must,  however,  be  filled  by  appoint- 
ment within  six  months.  Only  priests  of  unblem- 
ished character  who  have  served  at  least  ten  3^ears 
in  the  diocese  and  have  ruled  as  movable  rector  at 
least  three  years  or  have  otherwise  «-iven  evidence  of 
ability  to  administer  spiritual  and  temporal  affairs, 
may  be  admitted  to  compete.  All  competitors  must 
within  the  specified  time  file  application  with  the 
bishop  who  will  judg^e  of  their  admission. 

The  examination  will  be  in  moral  and  dog^matic 
theology,  liturg^y  and  canon  law  especially  on  practi- 
cal points.  A  catechetical  lesson  will  also  be  re- 
quired and  a  short  sermon.  The  questions  will  be 
proposed  to  all  competitors  at  the  same  time  and  a 
limited  term  g^ranted  for  reply.  The  competitors 
will  meet  in  the  same  room  under  a  prefect  and  none 
except  the  competitors  and  prefects  will  be  allowed 
in  the  room,  nor  will  any  be  permitted  to  leave  dur- 
ing" the  examination  except  for  necessity.  Each 
competitor  will  write  his  answers  and  sig^n  them; 
they  will  then  be  sig"ned  by  the  notary  of  the  con- 
cursus  and  each  of  the  examiners  and  by  the  ordi- 
nary. In  forming-  an  opinion  of  the  competency  of 
the  candidates  not  only  their  knowledg^e  but  their 
other  qualities  must  be  considered,  such  as  experi- 
ence and  capacity  in  temporal  aifairs,  prudence  in 
conduct  and  fairness  in  disposition.  The  examiners 
may  only  announce  to  the  bishop  the  names  of  all 
whom  they  find  competent  without  specifying-  the 
most  worthy.  The  examiners  must  g-ive  their  opin- 
ions  before  they    leave    the    place    of   examination. 


104  LEGAL    FORMULARY. 

The  bishop  or  his  vicar  g-eneral  will  not  take  part  in 
this  judg-ment  on  the  examination  except  in  case  of 
a  tie  vote  when  he  may  decide. 

104.  When  a  judgment  has  been  gfiven  by  the  ex- 
aminers the  vacant  parish  must  be  g-iven  to  one  of 
the  approved  candidates,  the  bishop  having-  the 
selection.  If  the  bishop  has  secret  information 
ag-ainst  a  candidate  he  may  pass  him  by  and  choose 
another  of  the  approved.  This  concursus  is  a  neces- 
sary prerequisite  for  appointment  to  an  irremovable 
rectorship,  except  when  it  is  first  established,  or  in 
case  the  bishop  desires  to  appoint  a  priest  (who  has 
been  once  cxaniincd,  S.  C.  Prop.  Oct.  10,  1884)  con- 
cerning" whose  knowledg-e  he  has  abundant  proof  on 
account  of  his  dig-nity  and  long-  service  to  the  church; 
but  in  this  case  the  bishop  must  first  hear  the  opin- 
ion of  the  examiners.  Such  collation,  however,  un- 
less explained,  is  liable  to  create  ill-feeling-  and  crit- 
icism. If  it  is  deemed  wise,  the  examination  reg-ard- 
ing-  knowledg-e  may  be  separated  from  the  other  ex- 
amination. This  is  the  practice  in  many  parts  of 
Germany.  I^ach  year  an  examination  is  held  for 
aspirants  to  irremovable  rectorships,  and  all  those 
who  pass  are  in  that  respect  considered  competent 
for  appointment  to  any  vacancy  within  six  years 
from  the  time  of  the  examination.  At  the  expira- 
tion of  six  years  they  must  be  re-examined  if  not  3^et 
appointed.  When  a  vacancy  occurs,  the  examina- 
tion is  only  reg-arding-  other  qualities.  (C/.  Zitclli 
App.  Juris  Ec.  p.  I'jj;  List.  S.  Prop.  Oct.  lo,  i88^.) 

105.  When  an  irremovable  rector  is  once  appointed 
he  cannot  be  removed  except  for  canonical  cause  and 
after  trial.     If  he   is  suspended   ex  informata   con- 


TRIAL    OF    RECTORS.  105 

scicntia  an  administrator  is  to  be  appointed,  but  the 
rector  retains  possession.  The  causes  called  canon- 
ical are  specified  in  law,  but  the  Third  council  added 
several  special  ones,  such  as  pertinacious  disobedience 
in  a  serious  matter  regarding  temporal  administra- 
tion, persistent  refusal  to  keep  up  a  catholic  school, 
temerarious  and  repeated  running  into  heavy  debt, 
collusion  with  the  church  lay  trustees  regfardin^  a 
note  for  money  due  the  pastor,  fraudulent  deceiving 
of  the  ordinary  in  the  yearly  report  in  a  serious  mat- 
ter to  the  g-rave  injury  of  the  parish,  public  defama- 
tion of  character  tendino-  to  g"rave  dang-er  for 
souls;  and  finally  incompetence  in  administering-  the 
parish.  In  such  last  case  the  rector  should  be  in- 
duced to  resiofn;  and  if  he  refuses,  a  vicar  according- 
to  law  should  be  appointed.  But  if  this  is  impossi- 
ble then  for  a  very  g-rave  reason  leg-all}^  shown,  the 
rector  may  be  removed  and  a  competent  pension  as- 
sig-ned  him  with  the  title  of  "rector  emeritus." 

106.  The  trial  of  an  irremovable  rector  must  be 
conducted  accordinof  to  the  instruction  "Cum  mag-no- 
pere."  According-  to  the  common  law  of  the  church, 
if  convicted  in  the  diocesan  court,  he  has  a  suspen- 
sive appeal  to  the  hig-her  court  and  retains  full  pos- 
session until  the  final  sentence.  Any  limitation  of 
this  rig-ht  is  odious  and  therefore  of  strict  interpre- 
tation. There  is  no  limitation  in  canon  law  itself, 
but  in  n.  286  of  the  Third  Plenary  Council  of  Balti- 
more one  exception  is  made  and  the  reason  of  the 
exception  is  g-iven  in  the  decree  itself.  The  excep- 
tional case  is  when  the  irremovable  rector  is  also  a 
trustee  of  the  parish  propert}^  before  the  civil  law. 

In  such  a  case  in  order  to  remove  him  from  his  civil 
15 


108  LEGAL    FORMULARY. 

Rev.  D.  N.  N.  rector  in  civitate  nostra. 

Rev.  D.  N.  N.  rector  in  urbe  N. 

Rev.  D.  N.  N.  rector  ecclesia^  S.  N—  in  N— ." 

When  each  name  has  been  separately  submitted 
and  voted  on,  either  by  secret  ballot  which  may  be 
demanded  {Cf.  Monacelli  t.  5,  /.  j,  n.  18)  or  by  a  viva 
voce  placet,  then  a  notation  is  made  to  that  effect  on 
the  document  itself  and  a  canonical  election  of  exam- 
iners has  been  held.  The  document  is  published 
with  the  synod;  nothing"  else  is  required.  A  similar 
form  may  be  used  for  appointment  out  of  synod, 
but  proper  publication,  after  it  has  been  sig"ned  and 
sealed,  must  be  effected  of  the  appointment  thus 
made: 

108.   A  form  follows  for  announcino-  a  concursus: 

"To  the  clerg"y  of  the  Diocese  of  N — .  Greeting*: 
The  irremovable  rectorship  of  St.  N.  in  the  city  of 
N —  has  become  vacant  by  the  death  (resio^nation)  of 

its   latest  incumbent  Rev.   N.  N.    on  the day  of 

189 — .  Therefore  in  accordance  with  the  pre- 
scriptions of  the  council  of  Trent  and  the  Third 
Plenary  Council  of  Baltimore  (aiid  by  virtue  of  the 

faculty  g*ranted  Us  by  the  Holy  See  on  of 

A.  D. —  for  extending-  the  time)  We  have  ordered  these 
letters  to  be  expedited  and  affixed  to  the  door  of  the 
vacant  church  and  of  our  cathedral  and  to  be  pub- 
lished; by  which  We  summon,  require  and  admonish 
all  of  our  diocese  who  wish  to  enter  the  concursus 
for  the  aforesaid  vacant  charge  to  appear  before  Us 
in  the  city  of  N —  within  ten  (thirty)  days  from  the 
publication  of  this  notice  and  to  give  their  names  and 
have  themselves  inscribed  by  our  chancellor  among* 
the  contestants,  for  at  the  expiration  of  the  said  ten 

(thirty)  days  on  the day  of A.  D. in  our 

episcopal  residence  the  concursus  of  those  inscribed 
will  be  held  before  the  synodal  examiners,    and  the 


M 


SYNODAL    EXAMINERS.  109 

aforesaid  cure  will  be  conferred  on  the  one  found 
more  worthy.     Given  &c. 

N.  Bishop  of  N.  (or  the  vicar  g^eneral.) 
[e.  s.]  N.  N.  Chancellor. 

An  official  publication  must  be  made  of  this  edict: 
a  newspaper  publication  is  hardly  s^ufficient.  The 
bishop's  name,  or  in  his  absence  that  of  his  vicar  <4"en- 
eral  must  for  validit}^  be  affixed  to  the  notice.  In 
the  United  States  only  those  in  the  diocese  for  ten 
years  are  allowed  to  compete. 

109.  The  following-  forrn  may  be  used  in  appoint- 
ing* an  irremovable  rector  after  concursus: 

"N. — Episcopus  N. —  Dilecto  &c.  Inter  ca^tera 
quae  pro  pastoralis  officii  debito  pra^stare  cupimus, 
illud  prsecipue  cordi  est,  ut  parochialibus  ecclesiis, 
quibus  de  rectoribus  providendum  est,  tales  praifi- 
ciamus  qui  ministerio  curae  animarum,  quod  omnium 
gravissimum  est,  laudabiliter  satisfaciant.  Vacante 
igitur  nuper  de  mense  N.  proxime  pra^terito  par- 
ochiali  ecclesia  sub  invocatione  S.  N.  in  oppido  N. 
hujus  nostrae  diciecesis  per  obitum  (vel  alias)  N.  N. 
illius,  dum  viveret,  ultimi  possessoris,  fuerunt  per 
curiam  nostram,  mediante  publico  edicto  juxta 
formam  et  praescriptum  Sacri  Concilii  Tridentini  et 
Tertii  Concilii  Plenarii  Baltimorensis,  vocati  omnes 
de  sic  vacante  ecclesia  provideri  cupicntes,  quatenus 
intra  terminum  decem  (vel  alias  prout  in  edicto) 
dierum  comparerent  in  eadem  curia  ad  faciendum 
describi  et  adnotari  noriiina  ipsorum;  et  cum  in  eodeni 
termino  plures  comparuissent,  tandem  iisdem  legi- 
time vocatis  sub  die ,  coram  Nobis  rigoroso  pra?vio 

examine  per  tres  examinatores  synodales  facta  fuit 
experientia  de  scientia  et  sufficientia  singulorum 
descriptorum  oppositorum,  ac  demum,  servatis  de 
jure  servandis,  fuisti  per  dictos  tres  examinatores 
repertus,  habitus  et  existimatus  idoneus  vita,  niori- 
bus,  a^tate  et  scientia,  et  aliis  a  jure  requisitis  prae- 


110  LEGAIv    FORMULARY. 

ditus,  et  ut  talis  ad  dictani  parochialem  ecclesiam, 
ejusque  curam  per  te  ipsum  reg^endam  ab  iisdem 
Nobis  renunciatus  fuisti,  et  successive  a  Nobis  ma^is 
idoneus  reputatus  et  judicatus;  Nos  ig'itur  eidem 
ecclesise  ac  animabus  illi  subditis  de  rectore  provi- 
dere  volentes,  tibi  quern  prse  caeteris  dio-niorem 
deleg'imus  eamdem  parochialem  cum  illi  atanexis, 
ac  omnibus  juribus,  et  pertinentiis  suis  universis 
conferimus  et  assio^namus,  de  illaque  te  coram  Nobis 
flexis  g^enibus  constitutum  et  acceptantem  per  bireti 
capiti  tuo  impositionem  investimus.  Quo-circa 
omnibus  notariis  publicis  et  personis  ecclesiasticis 
civitatis  et  dioecesis  nostras  per  praesentes  mandamus 
et  committimus,  ut  cum  pro  parte  tua  fuerint 
requisiti  vel  eorum  aliquis  requisitus,  (emissa  per  te 
prius  coram  vicario  nostro  gfenerali  professione  fidei,) 
ad  ipsani  parochialem  ecclesiam  dicti  loci  N.  acce- 
dant,  teque  vel  procuratorem  tuum  in  corporalem, 
realem  et  actualem  possessionem  pra^dicta^  parochi- 
alis  ecclesiam  ac  omnium  illi  annexorum  et  pertinen- 
tium  inducant  auctoritate  nostra  et  inductum  defend- 
ant, amoto  exinde  quolibet  illicito  detentore,  queni 
Nos  harum  serie  amovimus  et  denuntiamus  aniotum, 
ac  de  fructibus,  redditibus,  proventibus  et  obventi- 
onibus  universis  tibi  faciant  debito  tempore  respon- 
deri.  Volumus  auteni,  ac  pra3sentiuni  tenore  declar- 
amus  per  hujusmodi  parochialis  pacificam  posses- 
sionem, alteram  parochialem  ecclesiam  (missionem) 
loci  N.  quam  obtines  eo  ipso  vacare.  In  quorum  &c. 
Datum  &c. 
[l.  s.]         N.  N.  Cane.  Episc.         N.  Episcopus  N. 

110.   The  following-  form  may  be  used  for  appoint- 
ing-  a  movable  rector,  or  temporary  vicar  for  a  parish: 

"N —  Bishop  of  N — ,  to  our  beloved,  &c.,  g-reeting": 

Since  the  church  of  St.  N —  in  the  city  (town)  of 

N —  in  our  diocese  has  become  vacant  by  the  death 

(resig^nation,  transfer,  promotion)  of  the  Rev.  N.  N. 

its  former  pastor,  and  since  for  the  g-ood  of  souls  it 


APPOINTING    OF    RECTORS.  Ill 

is  necessary  that  we  provide  a  pastor  for  the  said 
church,  who  shall  be  our  vicar  and  movable  ad 
nutum;  we  therefore,  havintr  confidence  in  your 
knowled<:>*e,  piety,  prudence,  experience  and  general 
character,  do  by  these  presents  appoint  you  to  the 
said  vacant  church  with  its  care  of  souls,  until  other- 
wise decreed  in  writing-;  g-ranting-  you  all  and  sing-u- 
lar  the  necessary  rig^hts  and  powers  as  movable  rec- 
tor of  the  said  church  in  accordance  with  the  Plenary 
Councils  of  Baltimore  and  our  diocesan  statutes. 
Further  we  command  all  whom  it  may  concern  to 
recog'nii^e  you  as  such  pastor  and  rector  and  g-ive  you 
all  necessary  assistance.  In  testimony  whereof  &c. 
Given  &c.  N.  Bishop  of  N. 

[l.  s.]  N.  N.  Chancellor  of  Bishop." 

111.  If  it  becomes  advisable  for  g^rave  reasons  to 
transfer  a  movable  rector,  he  should  if  possible  be 
broug-ht  to  consent;  and  proper  consideration  in  any 
event  must  be  g^iven  to  his  merits.  Prudence  dic- 
tates that  he  should  either  be  g'iven  somewhat  of  a 
promotion  or  at  least  an  equivalent  charge.  In  the 
form  for  transferring-  no  reasons  need  be  g'iven,  for 
in  case  of  recourse  they  had  better  be  expressed  only 
when  demanded  by  the  hig"her  authority: 

*'N — Bishop  of  N — ,  to  our  beloved,  &c.,  g-reeting-: 
In  the  proper  manag^ement  of  our  diocese,  for  rea- 
sons known  to  ourselves,  and  having'  taken  full  con- 
sideration of  your  past  merits,  we  have  determined 
to  relieve  you  of  the  pastoral  charg-e  of  the  church  of 
St.  N —  in  N —  and  we  do  hereb}^  relieve  you  of  said 
charg-e  and  declare  the  said  church  vacant;  and  we 
signify  to  you  our  intention  of  appointing'  you  to  an- 
other charg'e,  which  appointment  is  conveyed  by  let- 
ters of  even  date  with  these.  In  testimony  whereof, 
&c.  Given  cS:c. 
[h.  s.]         N.  N.  Chancellor.         N.  Bishop  of  N." 


112  IvEGAL   FORMULARY. 

112.  An  assistant  may  be  ^iven  letters  after  the 
following'  form  : 

"N — ,  Bishop  of  N—,  to  Rev.  N.    N.,    beloved  in 
the  Lord,  greeting : 

The  Rev.  N.  N.  pastor  of  the  church  of  St.  N— 
in  N —  having"  sig'nified  to  us  his  desire  that  you  be 
assig'ned  as  his  assistant,  we,  being"  assured  of  your 
competency,  do  hereby  approve  of  you  for  that  posi- 
tion and  consent  that  you  be  assistant  in  said  parish 
in  accordance  with  the  diocesan  statutes,  until  other- 
wise ordered  b}^  us.  In  testimony  whereof,  &c. 
Given,  &c. 
[iv.  s.]         N.  N.  Chancellor.         N.  Bishop  of  N." 

113.  When  an  administrator  is  to  be  appointed  for 
a  parish  during"  a  vacancy,  this  form  may  be  used: 

"N— ,  Bishop  of  N— ,  to  Rev.    N.  N.,   beloved  in 
the  Lord,  g"reeting": 

The  parish  and  church  of  St.  N — ,  in  the  city  of 
N — ,  having"  become  vacant  by  the  death  (resig"na- 
tion,  transfer)  of  Rev.  N.  N.,  its  last  pastor,  v^e 
wishing",  as  is  required  by  law,  to  provide  for  its 
proper  care  during"  the  vacancy,  do  hereby  select  and 
appoint  you,  in  whom  we  have  confidence,  to  be  the 
temporary  administrator  of  the  said  vacant  parish, 
and  we  assig"n  you  out  of  its  revenues  the  monthly 
sum  of dollars  as  salary  tog"ether  with  the  per- 
quisites usually  received  by  the  pastor,  g"iving"  you 
all  the  necessary  powers  of  such  administrator  and 
commanding"  all  whom  it  may  concern  to  acknowledg"e 
you  as  such,  until  jjossession  is  taken  in  proper  form 
by  the  pastor  to  be  later  appointed.  In  testimony 
whereof,  &c.  Given,  &c. 
[L.  s.]        N.  N.  Chancellor.         N.  Bishop  of  N." 


CHAPTER  11. 

PARISHES,    CHANGES   IN    THEM,    PENSIONS. 

114.  The  erection  of  a  benefice  is  defined:  "A 
le^ifitiniate  act,  by  which  some  sacred  office  or  min- 
istry is  arrang'ed  to  be  performed  by  a  cleric  in  a 
certain  church  or  at  some  altar,  with  a  permanent 
income  which  the  cleric  will  receive  in  his  own  ri<^ht 
for  the  purpose  of  supporting*  himself  and  sustaining- 
the  expenses  of  the  benefice."  A  parish  is  a  benefice 
with  the  care  of  souls  attached.  Parishes  may  be 
erected  by  the  bishop  of  the  diocese,  provided  certain 
conditions  are  observed.  They  may  be  erected  by 
creation,  i.  e.  by  assigning  to  the  new  parish  terri- 
tor}^  not  yet  belonging  to  any  parish,  which  is  a 
usual  method  in  missionary  countries,  by  detaching- 
territory  from  one  or  several  parishes  and  making-  a 
new  one  thereof;  by  uniting-  two  or  more  parishes 
into  one. 

115.  It  is  universally  held  that  the  large  number 
of  parishioners  is  not  in  itself  a  sufficient  reason  for 
dividing-  a  parish.  In  such  a  case  the  parish  priest 
can  be  obliged  to  accept  assistants  sufficient  in  num- 
ber to  attend  to  the  wants  of  the  people.  As  a  last 
resource,  however,  a  parish  may  be  divided,  provided 
certain  solemnities  be  observed.  The  council  of 
Trent  (scss.  21,  c.  ^,  dc  re  for, ^  says:  *'As  regards 
those  churches  to  which  on  account  of  the  distance 

10  113 


114  LEGAL    FORMULARY. 

or  the  difficulties  of  the  locality,  the  parishioners 
cannot  without  g^reat  inconvenience  repair  to  receive 
the  sacraments  and  to  assist  at  the  divine  offices,  the 
bishops  may  even  ag^ainst  the  will  of  the  rectors, 
establish  new  parishes."  Thus  necessity  or  g^reat 
utility  for  the  people  are  considered  sufficient  causes 
for  dividing"  a  parish  and  erecting-  a  new  one.  A 
reg"ular  process  should  be  instituted  showing-  this 
necessity  or  utility  before  the  decree  of  division  is 
drawn.  The  bishop  either  personally  or  throug-h 
his  vicar  g-eneral  should  ascertain  formally  that  the 
necessity  or  g-reat  utility  for  the  division  exists;  the 
rector  and  the  parishioners  of  the  parish  to  be 
divided  should  be  summoned  and  heard  that  no  injus- 
tice may  be  done;  the  bishop  in  the  United  States 
must  take  the  advice  of  the  diocesan  consultors, 
(///  Plenary  Council  Balthnore^  n.  20,)  and  where 
there  is  a  cathedral  chapter  its  consent  is  necessary; 
the  bishop  in  his  decree  must  fix  the  limits  of  the 
new  parish  either  territorially  or  by  desig-nating- 
families;  a  competent  support  must  be  assig-ned  the 
new  pastor  either  out  of  the  revenues  of  the  mother 
church  or  by  assessment  on  the  new  parishioners  or 
otherwise.  It  requires  at  least  ten  families  for  the 
formation  of  a  parish. 

116.  The  decree  of  dismemberment  of  a  parish  is 
considered  odious  in  law  {CojiiiniDiis  DD.)  and 
therefore  must  be  strictly  interpreted.  But  an 
appeal  ag"ainst  it  is  not  suspensive  but  only  devolu- 
tive. {Cf.  Const.  Ad  niililanlis,  o)i  appeals.)  Not 
only  the  parish  priest  may  appeal  ag-ainst  dismem- 
berment, but  anyone  of  the  people  of  the  parish  may 
undertake   the  cause    even  ag-ainst  the  wish  of  the 


DISMEMBERING    PARISHES.  115 

pastor  if  he  neg'lects  to  oppose  dismemberment. 
{Cf.  S.  Rotcc  R.  Dccis.  Rcc.  2^,  n.  ^,  f>.  3,  ciccis.  5^.) 
The  same  tribunal  has  decided  that  the  necessity  or 
the  evident  utility  of  the  dismemberment  must  be 
proved  by  the  bishop  and  a  mere  presumption  will 
not  suffice.  {Decis.  116,  n.  /j,  />.  /  ?.)  Further  it 
decided  that  the  reasons  g"iven  must  be  true  at  ])res- 
ent,  not  merely  probable' for  the  future.  If  the 
dismemberment  should  inflict  a  vital  -injury  on  the 
old  parish,  or  if  the  new  parish  should  be  unable  to 
support  itself,  it  seems  certain  that  there  is  no 
"evident  utility,"  but,  on  the  contrary,  «-reat  injury 
in  the  dismemberment.  No  precise  rules  can  be  laid 
down  either  as  to  the  distance  or  the  inconvenience 
required  for  dismemberment.  Two  miles  or  a  mile 
and  a  half  is  considered  sufficient,  and  country  mis- 
sions may  be  separated  from  a  parish  as  soon  as  they 
are  able  to  support  a  priest.  The  bishop  is  the  com- 
petent judg-e  in  the  matter.  In  the  same  way  a 
union  of  parts  of  two  or  more  parishes  may  consti- 
tute a  new  parish,  if  sufficient  support  is  at  hand. 
A  petition  and  subscription  of  the  people  interested 
is  a  o^ood  g-uarantee  on  this  head.  Likewise  two 
parishes  may  be  united  into  one,  not  temporarily  but 
perpetually,  by  the  bishop  if  the  conditions  g-iven 
above  are  present.  The  chief  cause  for  such  a  union 
is  the  poverty  of  the  parishes.  In  dividintr  a  parish 
canonically  erected,  the  bishop  is  strictly  oblig-ed  to 
follow  the  council  of  Trent;  but  in  dividing-  a  mission, 
after  takinof  the  advice  of  the  rector  and  the  dioce- 
san  consultors,  his  judg^ment  of  the  necessity  of  dis- 
memberment has  great  weig^ht.  {Cf.  Rom.  Po)ih'/\) 
117.   Dismemberment  is  a  species  of  alienation,  and 


116  LEGAIv    FORMULARY. 

hence  strictly  the  consent  of  the  Holy  See  is  re- 
quired. Parish  property,  as  all  other  church  prop- 
erty, may  not  be  alienated,  sold,  mortg'ao'ed  or  g'iven 
away  without  necessity  or  evident  utility,  and  the 
previous  consent  of  the  Holy  See.  This  applies  to 
a  renewal  of  a  mortg'ag'e  as  well  as  the  first  g'iving- 
it.  In  the  United  States,  the  bishops  in  manag"in^ 
loans  and  mortg-agfes  on  the  church  property  of  the 
diocese  or  of  parishes  must  take  the  advice  of  the 
diocesan  consultors,  and  the  permission  of  the  Holy 
See  is  also  a  necessary  condition.  However,  by 
special  faculties  g^ranted  for  ten  pears  from  Jan.  6, 
1886,  (and  renewed  to  the  individual  bishops)  the 
Holy  See  on  account  of  peculiar  circumstances  has 
waived  the  necessity  of  the  previous  apostolic  bene- 
placitum  for  such  alienation  and  allowed  the  bishops 
to  act  without  it,  on  condition  that  for  each  case 
they  first  ask  the  advice  of  their  consultors,  in 
collegiate  meeting",  and  that  they  report  every  three 
years  to  the  Propao;anda  the  various  mortg'ag'es  and 
other  transactions  as  well  as  the  exact  condition  of 
the  parishes  for  which  debt  was  thus  contracted. 
{Cf.  Ill  Conn,  of  Bait. -page  c  1 1 1  ?)  It  seems  scarcely 
necessary  to  state  that  the  advice  of  the  consultors 
cannot  be  obtained  by  interviewing"  them  individually; 
the  council  specifically  requires  colleg'iate  action  of 
which  a  proper  record  must  be  kept. 

118.  While  the  limits  of  parishes  in  g"eneral  should 
not  be  chang-ed,  more  serious  reasons  are  required 
for  dismembering"  an  irremovable  rectorship,  than 
for  one  not  so  desig^nated;  because  its  revenues  were 
a  matter  of  consideration  and-  necessary  assurance 
before    the  church   was  g'iven   the  privilegfe  of  irre- 


ONE    RECTOR    IN     EVERY    TEN.  117 

movability.  As  mentioned  in  the  previous  chapter, 
there  are  two  kinds  of  rectorships  in  the  United 
States,  movable  and  irremovable.  A  parish  must 
have  a  cong-ruous  church,  school,  presbytery  and 
assured  revenues  sufficient  for  the  support  of  the 
pastor,  church  and  school,  before  it  can  be  made  an 
irremovable  rectorship.  The  law  says  that  for  the 
present  one  tenth  of  the  parishes  or  rectorshiy)s  of 
each  diocese  shall  be  made  irremovable,  but  adds 
that  this  proportion  should  not  be  inconsiderately 
increased  before  the  year  1%6.  The  law  also  says 
that  irremovable  rectorships  must  be  established  in 
the  above  proportion  before  Jan.  G,  1889.  The  con- 
ditions on  the  part  of  the  person  to  be  appointed  are 
ten  years'  honorable  service  in  the  diocese,  experience 
in  manag"ing'  the  temporal  and  spiritual  aifairs  of  a 
parish,  and  a  satisfactory  examination  in  the  con- 
cursus.  However,  for  the  first  time,  irremovable 
rectors  may  be  appointed  by  the  bishop  without  con- 
cursus  but  with  the  advice  of  the -consul tors.  {Cf. 
Ill  PL  C.  BdlL  nos.  j^-jy.) 

119.  Prom  these  decrees  it  seems  certain  that  au}" 
movable  rector,  who  has  the  required  competence 
and  whose  parish  has  the  proper  conditions,  may 
demand  of  the  bishop  that  he  be  declared  an  irre- 
movable rector  if  one  tenth  of  the  parishes  of  the 
diocese  are  not  yet  irremovable  rectorships.  The 
law  insists  that  these  rectors — one  in  every,  ten — be 
made  irremovable  before  Jan.  6,  1889,  If  this  has 
not  been  done  a  recourse  to  the  Propag^anda  will 
bring-  it  about.  Neither  are  the  conditions  laid  down 
by  the  decrees  to  be  extended  but  rather  mitio^ated, 
since  the  establishment  of  such  rectorships  is  an  ap- 


118  EvEGAI^    FORMUIvARY. 

proach  to  the  common  law,  not  a  departure  from  it. 
120.  The  Third  Council  of  Baltimore,  n.  38,  enacts 
that  the  bishop  shall  provide  a  pension  with  the  title 
of  "rector  emeritus,"  for  an  irremovable  rector  who 
is  either  removed  or  resig*ns  voluntarily,  said  pension 
to  be  such  as  with  the  advice  of  his  consultors  the 
bishop  shall  deem  cong-ruous.  This  pension  may  be 
payable,  with  the  consent  of  the  Holy  See,  by  the 
parish  which  the  rector  assio'ned,  or  from  the  fund 
set  apart  for  infirm  priests.  Such  a  fund  is  ordered 
by  the  same  council,  n.  71,  to  be  collected  by  a  tax 
on  all  the  parishes  of  the  diocese,  even  those  in  charg-e 
of  religfious  communities,  and  to  be  apportioned  for 
the  support  of  the  inlirm  and  ag^ed  priests  who  were 
ordained  titulo  viissionis  for  the  diocese,  and  whom 
it  therefore  is  bound  to  support.  When  a  priest  has 
become  a  rector  and  faithfully  served  the  church  for 
years,  rio-ht  reason  and  the  sense  of  mankind  will 
not  allow  that  he  should  be  deg"raded  because  of  old 
ag-e  to  the  position  of  an  assistant  or  chaplain,  or  be 
refused  support  and  a  pension  from  the  diocesan 
fund.  When  the  resia"nation  of  his  parish  is  ac- 
cepted, by  that  fact  he  becomes  a  pensioner.  If  he 
willing'ly  performs  some  work  as  chaplain,  this  fact 
should  not  influence  or  be  allowed  to  influence  the 
pension  to  which  the  law  entitles  him  without  a 
deg"radation.  However,  sometimes  the  poverty  of 
the  diocese  is  allegfed  for  such  methods.  Priests 
ordained  by  the  title  of  mission  who  after  trial  have 
been  definitely  removed  from  their  office,  are  still 
entitled  to  support  from  the  diocese  until  by  reg-ular 
process  they  are  shown,  after  many  attempts  at  re- 
form,   to  be  incorrigible.     Only  then  may   they    be 


PENSIONS   FOR    PRIESTS.  119 

denied  support.  Before  this  time  they  should  be 
maintained  in  monasteries  or  other  houses  at  the 
order  of  the  bishop,  even  while  under  censure.  { II I  PL 
CoiDicU  Bait.  )i.  72.)  Priests  who  because  of  old 
a^e,  infirm  health  or  other  cause  draw  a  pension  are 
subject  to  the  orders  of  the  bisho[)  like  others  and 
may  be  forced  under  pain  of  censure  to  reside  in  their 
own  diocese.  Whether  priests  derelict  in  duty  may 
without  trial  be  condemned  by  the  bishop  to  live  in 
some  monastery  outside  the  diocese  where  he  has  no 
jurisdiction  and  cannot  <*'ive  the  priest  even  a  "cele- 
bret"  is  left  to  others  to  determine.  It  seems  like 
banishment,  which  is  a  very  severe  punishment. 

121.  The  folio win^^  form  may  be  used  in  estab- 
lishing- a  parish  church: 

"N — ,  Bishop  of  N — .  Since  in  our  visitation  re- 
cently made  We  noticed  that  there  is  no  parish  church 
in  N—  in  which  the  faithful  residinjjf  there  may  re- 
ceive the  sacraments  and  hear  the  word  of  God;  and 
beintr  desirous  of  providing-  for  the  salvation  of  souls 
and  of  obviatino-  the  evils  which  arise  from  the  ab- 
sence of  a  stationed  pastor;  considering  also  the  pe- 
tition of  the  inhabitants  of  the  aforesaid  place  for  a 
parish  church  and  their  subscription  made  and  reg"- 
istered  in  our  chancery  that  they  will  each  year  pa}' 
a  certain  sum  for  the  support  of  the  pastor  and  the 
])arish  church,  house  and  other  necessities,  until 
otherwise  provided,  (since  funds  cannot  be  provided 
by  assiofnin«-  part  of  the  revenues  of  the  mother 
church  or  endowments;)  therefore,  invoking-  the  name 
of  our  Lord  Jesus  Christ,  and  of  His  mother  the  ever 
blessed  Virgin  Mary,  We  hereby  erect  by  our  ordi- 
nary authority  and  every  other  best  way,  the  church 
of  N — -  under  the  invocation  of  Saint  N —  of  this  our 
diocese  into  a  parochial  church  and  We  wish  and  de- 
clare it   to  be   thus  erected,    and  after   it  shall  have 


120  .  LEGAIv   FORMUIvARY. 

been  provided  with  a  decent  tabernacle  and  other 
necessaries  for  the  sacraments,  as  We  ordered  in  our 
visitation,  We  command  that  the  Most  Blessed  Sac- 
rament be  kept  at  the  high  altar,  and  a  baptismal 
font,  holy  oils  and  other  thini^^s  necessary  for  a  par- 
ish church  be  retained  in  proper  places.  Further 
We  concede  and  decree  that  the  said  church  shall 
enjoy  all  the  ri<>"lits  and  privileges  which  by  law 
parish  churches  enjoy,  with  the  subscriptions  and 
revenues  promised  by  the  aforesaid  parishioners, 
and  all  other  offering's,  alms  and  revenues,  certain 
and  uncertain,  conceded  and  permitted  by  the  canons 
to  such  a  cure;  and  We  declare  and  decree  that  the 
said  church  is  not  subject  to  any  Jus  f>atronatus 
whatever,  but  that  it  pertains  to  the  free  collation 
of  ourselves  and  our  successors  in  office,  according- 
to  the  form  provided  by  the  councils  of  Trent  and 
Baltimore  for  concursus. 

"But  that  the  aforesaid  church  thus  newly  erected 
into  a  parish  church  may  be  provided  with  a  compe- 
tent rector  who  may  rule  and  g^uide  the  people  in 
spiritual  matters  and  the  care  of  souls,  and  who  will 
be  obligfed  to  celebrate  mass  on  Sundays  and  other 
festive  days  of  oblig^ation  for  his  flock,  and  administer 
the  sacraments  of  penance  and  Holy  Kucharist  as 
well  as  join  his  parishioners  in  matrimony  in  the 
aforesaid  church  and  teach  the  rudiments  of  faith; 
We  hereby  choose  and  set  over  the  said  church  our 
beloved  in  the  Lord,  N.  N.,  a  priest  found  worthy 
and  competent  by  Us  and  our  synodal  examiners; 
and  We  commit  to  him  the  cure,  rule  and  adminis- 
tration of  the  sacraments,  and  confer  upon  him  the 
said  parochial  church  thus  newly  erected;  command- 
ing" all  notaries  and  all  whom  it  may  concern  to  hold 
and  recog'niiie  him  as  such  pastor,  and,  after  he  has 
made  a  profession  of  faith  before  our  vicar  g*eneral, 
to  assist  him  or  his  procurator  in  taking"  formal  and 
actual  possession  of  the  said  parochial  church,  and 
We  wish  and  hereby  declare  that  the  other  church  of 


DECREE   FOR    FORMING    PARISH.       .  121 

N — ,  which  he  now  holds  shall,  by  the  said  taking- 
peaceable  possession  of  his  new  cure,  become  vacant. 
In  testimony  whereof,  &c.     Given,  &c. 
[ly.  s.]  N.  Bishop  of  N. 

N.  N.  Chancellor." 

"The  above  decree  of  (dismemberment  and)  erection 
of  the  parish  church  of  N —  was  read,  made  and  pub- 
lished in  the  episcopal  residence  on day  of 

A.  D.  in  the  presence  of witnesses. 

N— ,  Witness.     N— ,  Witness. 

N.  N.  Bishop's  Chancellor." 

122.  The  usual  method  of  creating-  parishes  in  the 
United  States  is  to  cut  off  certain  territory  from  ex- 
isting- parishes,  and,  without  assig-ning  any  yearl}^ 
revenues  from  the  mother  church,  to  arrange  a  sub- 
scription to  be  paid  by  the  parishioners  thus  cut  off 
and  attached  to  the  new  parish.  Sometimes  a  cer- 
tain sum  is  ordered  paid  by  the  mother  church  to  the 
new  parish,  without,*  however,  giving-  the  mother 
parish  any  right  over  the  new  one.  The  process 
mentioned  should  be  carefull}^  drawn  that  in  case  of 
appeal  a  proper  defense  may  be  made.  The  follow- 
ing form  may  be  used  for  the  decree: 

"N — ,  Bishop  of  N — .  Willingly  encourag-ing- 
everything-  which  can  remove  dang-er  from  souls  and 
aiford  relief  to  the  people  committed  to  Us,  and  be- 
ing moved  by  the  prayers  of  the  catholic  people  of 
N — ,  who  have  sorrowfully  informed  Us  that  because 
of  distance,  (railroad  crossings,  &c.)  it  is  only  with 
very  great  difficulty  and  dang-er,  if  at  all,  that  they 
can  receive  the  sacraments  and  attend  mass  in  the 
parish  church  of  N — ,  to  which  they  belong;  that 
especially  the  old,  the  infirm  and  the  young  can 
rarely  for  these  reasons  assist  at  the  divine  offices; 
nor  can  the  children,  as  is  required,  attend  the  parish 
17 


122  LKGAL    FORMULARY. 

school;  (havino-,  moreover,  obtained  the  consent  of 
the  pastor  of  said  parish  church  of  N —  and  of  our 
cathedral  chapter,  cousultors)  We  have  determined 
to  proceed,  as  the  said  petitioners  have  requested,  to 
the  dismemberment  and  erection,  respectively,  of  a 
new  parish.  Wherefore,  a  careful  examination  of 
the  matter  having  been  made  by  our  vicar  o'eneral 
under  express  orders,  and  a  process  having-  been 
dravt^n  up,  after  the  rector  of  the  aforesaid  parish 
of  N —  was  cited  and  heard,  and  the  facts  being-  con- 
clusively sustained  by  the  depositions  of  witnesses 
and  other  leg-itimate  proofs.  We,  by  virtue  of  our 
ordinary  power  and  of  that  deleg^ated  by  the  council 
of  Trent,  c.  4,  sess.  21  de  reform,  do  hereby  separate 
divide  and  dismember  the  said  place  N —  with  the 
church  of  Saint  N —  (now  built  or  to  be  built),  its 
people,  inhabitants  and  families  from  the  aforesaid 
parish  church  of  N — ;  and,  with  the  consent  of  our 
chapter  (consultors)  We  erect  and  constitute  the  said 
church  of  Saint  N —  with  its  place  and  district  ex- 
tending- from to (g'we  exact  limits  on  N.  S. 

E).  W.)  into  a  parish  church,  g-iving-  and  conceding-  to 
the  inhabitants  of  the  said  place  and  district  full  and 
free  power  to  have  and  to  hold  in  the  said  parish, 
funerals,  a  cemetery,  baptismal '  font,  belfry  and 
all  other  marks  of  a  parish.  And  We  hereby  assig-n 
as  a  proper  division  of  the  property  of  the  old  parish 

of  N —  the  sum  of dollars  to  be  paid  within 

years  by  the  said  old  parish  of  N —  to  the  said  new 
parish  of  N —  in  full  for  all  claims  and  demands. 
This  money,  tog-ether  with  the  subscriptions  prom- 
ised by  the  petitioners  and  recorded  in  our  chancery, 
and  all  other  alms,  dues  and  offering's,  certain  and 
uncertain,  usual  to  parish  churches.  We  hereby  tax 
and  assig-n  for  the  support  of  the  pastor  and  the 
aforesaid  new  parish  in  accordance  with  the  diocesan 
statutes.  And  We  declare  and  decree  that  the  said 
church  of  Saint  N —  is  not  subject  to  'dny  j'lcs  palro7z- 
atus  whatever,  but  that  it  pertains  to  the  free  coUa- 


DECREE    EOR    FORMING    PARISH.  123 

tion  of  ourselves  and  our  successors  in  office,  accord- 
inor  to  the  form  of  the  council  of  Trent.  But  that 
&c,  as  above  in  number  121,  to  the  end." 

123.  When  one  parish  church  is  to  be  united  to 
another,  for  some  just  cause,  such  as  poverty,  the 
process  must  show  the  cause  fully  proved.  The 
decree  may  be  drawn  as  follows: 

"N — ,  Bishop  of  N — .  To  all  interested,  peace  in 
the  Lord.  That  divine  worship  in  parochial  churches 
may  be  properly  conducted  throughout  our  diocese 
and  that  those  havino-  the  care  of  souls  in  them  may 
be  sufficiently  supported  from  the  altar.  We  g^ladly 
accord  our  assistance.  Therefore,  since  it  has  been 
brouo-ht  to  our  attention  by  the  Rev.  N.  N.,  the  rec- 
tor of  the  parochial  church  of  Saint  I  in  N —  that  in 
the  same  place  (or  near  it)  there  is  another  parish 
church  under  the  invocation  of  Saint  2  whose  rev- 
enues on  account  of  their  smallness  are  not  sufficient 
to  support  its  pastor;  and  if  the  said  parochial  cliurch 
of  Saint  2  be  united  to  the  said  parochial  church  of 
Saint  I,  which  is  situated  in  a  better  location,  then  a 
proper  support  can  be  obtained  for  the  rector  of  this 
church  of  Saint  I,  and  divine  worship  can  be  cele- 
brated in  a  more  becominor  manner;  moreover,  since 
for  these  reasons  he  has  asked  Us  to  provide  in  ac- 
cordance with  the  premises,  and  since  We  find  all 
and  sino'ular  his  statements  to  be  true,  as  is  shown 
by  a  lejjitimate  and  diliofent  examination  instituted 
by  Us  and  the  testimony  of  witnesses  worthy  of 
belief;  therefore  by  our  ordinary  authority  and  that 
deleg"ated  by  the  Holy  See  throug-h  the  sacred  coun- 
cil of  Trent  sess.  21,  c.  5.  de  reform,  and  by  ever}^ 
other  best  way,  with  the  consent  also  of  our  cathe- 
dral chapter  (consultors)  We  by  these  presents  do 
perpetually  unite,  annex  and  incorporate  the  afore- 
said parochial  church  of  Saint  2  with  all  its  ricfhts 
and  appurtenances   to  and    with   the   said    parochial 


124  LEGAL    FORMULARY. 

church  of  Saint  I  for  the  better  service  of  God  and 
the  g-reater  ^ood  of  souls;  in  such  a  way  that  when- 
ever the  present  rector  of  Saint  2  shall  die  or  resig'n 
or  in  any  other  way  vacate  the  said  church,  and  its 
provision  and  disposal  thereby  pertains  to  Us,  then 
and  in  such  case  it  shall  be  lawful  for  the  then  ex- 
isting- rector  of  the  church  of  Saint  I  by  his  own  au- 
thority to  freely  take  actual,  corporal  and  real  pos- 
session of  the  said  church  of  Saint  2  and  of  all  its 
rights  and  property,  and  to  convert  the  fruits  and 
revenues  thereof  to  his  own  use  and  that  of  the  afore- 
said churches  and  perpetually  retain  possession  with- 
out any  other  permission  whatever  being  obtained 
from  any  superior.  But  We  desire  that  when  the 
union  shall  have  been  effected,  the  aforesaid  church 
of  Saint  2  shall  not  be  defrauded  of  its  proper  ser- 
vice and  that  the  care  of'  souls  in  it  shall  not  be 
neg-lected,  but  that  its  burdens  be  supported.  All 
and  singular  of  which  We  make  known  to  you  by  the 
above  letters.  In  testimon}^  whereof,  &c.  Given  &c. 
[l.  s.]  N.  Bishop  of  N. 

N.  N.  Chancellor." 

"The  above  decree  of  the  union  of  the  church  of 
Saint  2  with  the  church  of  Saint  I  was  read,  made 
and  published  also  by  affixing-  it  to  the  doors  of  the 
aforesaid  churches  as  is  certified  by  the  court  mes- 
seng-er  in  the  presence  of  N.  N.  and  N.  N.,  witnesses 
for  the  purpose. 

N.  N.  Chancellor." 

124.  When  a  bishop  establishes  an  irremovable 
rectorship  the  following  form  of  decree -may  be  used 
and  published  in  the  usual  way,  especially  by  affix- 
ing- it  to  the  church  door: 

'  'N. —  Bishop  of  N. —  to  all  whom  it  may  concern, 
g-reeting;  Since  it  is  required  by  the  Third  Plenary 
Council  of  Baltimore  that  a  number  of  parishes  in 
each  diocese,    which  have  the  proper  qualifications. 


DECREK    FOR    FORMING    PARISH.  125 

be  made  irremovable  rectorships,  and  since  the  parish 
of  St.  N. —  in  the  city  of  N. —  has  been  found  by 
examination  and  the  process  instituted  by  our  vicar 
g-eneral,  to  have  a  cong-ruous  church,  presb3^tery  and 
school  for  both  sexes  as  well  as  an  assurance  of  com- 
petent support  for  the  parish  and  the  aforesaid  par- 
ish institutions;  therefore  We,  having-  taken  the  ad- 
vice of  our  diocesan  consultors,  do  hereby  make,  con- 
stitute and  declare  the  said  church  and  parish  of  St. 
N, —  in  the  city  of  N.  an  irremovable  rectorship  w^ith 
all  the  rights  and  privileges  by  law  accorded  to  the 
same,  and  We  hereby  define  its  territory  to  be  as 
formerly  with  these  limits.  (Give  exact  limits  on  K. 
W.  N.  S. )  Further;  that  the  newly  erected  rector- 
ship may  be  supplied  with  a  competent  rector,  in 
accordance  with  the  same  council  of  Baltimore  We 
hereby  designate  and  appoint  the  Rev.  N.  N.,  whom 
We  and  our  synodal  examiners  have  found  worthy 
and  competent,  to  be  its  irremovable  rector  with  all 
the  rights  and  privileges  by  law  granted  to  such 
rector;  and  We  command  all  whom  it  concerns  to 
recognize  him  as  such  irremovable  rector  and  accord 
him  all  the  rights  and  privileges  consonant  therewith. 
In  testimony  whereof  &c.  Given  &c. 
[o.  s.]  N.  Bishop  of  N. 

N.  N.  Chancellor." 

125.  When  a  parish  has  all  the  requirements  for 
an  irremovable  rectorship  an  application  may  thus 
be  made  to  the  bishop  asking  that  he  declare  it  such 
by  proper  decree: 

"Place  and  date. Most  Reverend  Bishop:  The 

undersigned  priest  of  the  diocese  of respectfully 

lays  before  Your  Lordship  the  following^  facts  and 
petition.  The  parish  of  Saint —  in  the  cit}^  of  —  has 
a  congruous  brick  church,  an  appropriate  rectory, 
and  schools  in  which  the  children  of  the  parish  re- 
ceive satisfactory  education.     The  assured  revenues 


126  LEGAL    FORMULARY. 

of  the  parish  from  pew  rents,  collections,  &c.,  are 
ample  for  the  support  of  the  pastor  and  the  afore- 
said institutions. 

The  undersiofned,  the  present  rector  of  the  parish, 
has  been  in    honorable  and   faithful   service  in  this 

diocese  for (over  ten)  years,    and   has   been  in 

charg^e  of  a  mission  for years  during-  which  time 

he  believes  his  administration  of  spiritual  and  tem- 
poral affairs  was  successful.  Moreover  he  has  re- 
ceived in  reg-ular  course  the  deg-ree  of to  which 

he  points' as  proof  of  sufficient  knowledg-e. 

Therefore,  your  orator,  while  humbly  showino- 
that  these  are  the  requirements  for  an  irremovable 
rectorship   (III  C.    Bait.    ch.    5)   and  that  there  are 

in  the  diocese  of less  than  the  required    ten  per 

cent,  of  the  pastors  made  irremovable  rectors,  earn- 
estly petitions  that  Your  Ivordship  will  forthwith 
institute  the  usual  process  and  make  a  decree  to  the 
effect  that  the  church  of  Saint  —  in  —  is  an  irre- 
movable rectorship  and  that  the  undersig"ned.  Rev. 
N.  N.  is  its  permanent  rector,  with  the  rigfhts  and 
privilegfes  accorded  by  law.  And  your  orator  will 
ever  pray.     With  g^reat  respect,  I  remain. 

Your  Lordship's  obedient  servant, 
To  Most  Rev.  N.,  Bishop  of  N.    ■  N.N." 

The  application  will  receive  proper  consideration 
and  a  reply.  If  the  pastor  finds  himself  ag-g-rieved 
thereby  he  may  make  a  recourse  on  the  matter  to  the 
S.  Cong*reg*ation  of  the  Propag-anda. 

126.  When  two  irremovable  rectors  wish  to  ex- 
chang-e  parishes,  each  without  fraud,  unconditionally 
resig-ns  in  favor  of  the  other,  and  after  the  bishop 
accepts  the  resig-uations,  as  he  may  do  in  any  month 
of  the  year,  he  issues  without  concursus  and  orders 
published  within  three  months  a  decree  for  each  like 
the  following': 


DECREE    FOR    EXCHANGING    PARISH.  127 

"N— ,  Bishop  of  N— ,  to  our  beloved  N.  N.  health 
in  the  Lord.  Accommodating  ourselves  to  the  just 
desires  of  petitioners  We  willinorly  g-rant  what  is 
not  contrary  to  the  sacred  canons.  Since,  therefore, 
you  this  day  throuf^h  yourself  have  resi<^ned  freely, 
spontaneously  and  unconditionall}^  into  our  hands 
the  parish  church  of  Saint  N —  in  N —  (or  other 
benefice),  and  likewise  our  well  beloved  in  the  Lord, 
the  Rev.  N.  N.  by  his  procurator  N.  N.  specially 
commissioned  for  this  purpose,  has  resi<>-ned  freely, 
spontaneously  and  unconditionally  his  parish  of 
Saint  N —  in  N —  ex  causa  -pcrmulalionis  to  be  made 
sincerely  between  yourselves;  We,  inclining  favor- 
abl}''  to  your  v^nshes,  having  accepted  the  resignation 
for  the  aforesaid  reason,  do  b}'  our  ordinar}^  authority 
hereby  confer  and  assign  to  you  the  aforesaid  parish 
church  thus  made  vacant,  with  all  its  rights  and 
appurtenances;  you  having  been  examined  and  found 
competent  by  three  of  our  synodal  examiners.  (The 
last  clause  is  not  necessary  if  he  has  been  previously 
examined  for  another  parish.)  And  We  by  the  im- 
position of  the  biretum  on  your  head,  do  hereby  invest 
you  with  the  said  parish  and  We  immit  you  into  the 
actual,  real  or  corporal  possession  thereof,  you  hav- 
ing made  and  We  received  your  oath  on  the  holy 
gospels,  that  no  fraudulent  pact  or  bargain  has  in- 
tervened, and  that  you  will  be  faithful  and  obedient 
to  Us  and  our  successors  in  office  and  to  holy  church 
and  that  you  will  laudably  serve  the  aforesaid  church 
in  spirituals  and  temporals,  and  support  its  burdens, 
and  recognize  our  rig*hts,  and  that  you  will  maintain 
and  defend  to  your  best  ability  the  rights  and  prop- 
erty and  will  not  alienate  anything  of  the  said  church, 
but  will  endeavor  to  recover  any  rights  or  property 
which  may  be  alienated  at  any  time.  Wherefor  by 
these  presents  We  order  all  notaries  and  others 
whom  it  may  concern  to  recognize  you,  (after  you 
have  made  a  profession  of  faith  before  our  vicar  gen- 
eral) as  such  parish  priest  and  to  assist  you  in  tak- 


128  I^EGAL   FORMULARY. 

ing-  possession  of  the  said  parish  by  our  authority. 
In  testimony  whereof  We  have  hereunto  attached 
our  sig'nature  and  ordered  our  seal  affixed,  and  the 
above  decree  to  be  expedited  and  published.  Given  &c. 
[l.  s.]  N.  Bishop  of  N. 

N.  N.  Chancellor." 

If  the  exchang^e  of  parishes  should  be  fraudulent 
it  would  be  null.  Fraud  is  supposed  when  an  ex- 
chang-e  is  made  by  a  sick  or  very  old  person  or  when 
there  is  a  great  difference  in  the  benefices  exchanged. 
No  exchange  can  be  made  by  the  mere  act  of  the 
beneficiaries.  It  must  be  made  with  the  consent  of 
their  superior;  otherwise  both  lose  their  benefices. 
To  prevent  fraud  the  exchange  must  be   published. 

127.  When  an  irremovable  rector  (or  a  movable 
one)  wishes  to  resign  his  parish  because  of  old  age, 
or  other  reasonable  cause,  he  must  file  his  resigna- 
tion in  writing  with  the  bishop,  who  within  one 
month  will  either  accept  or  reject  it,  and  within  the 
same  time  will  fill  the  vacancy.  (C/.  Monacelli,  T.  /, 
f.  ig,  t.  2,  n.  5.)  Because  of  the  special  faculties  given 
by  the  Holy  See  to  bishops  of  the  United  States,  this 
time  for  filling  the  vacancy  may  be  extended  twenty 
days.  The  person  resigning  his  parish  must  be 
otherwise  provided  with  support,  and  the  bishop 
before  accepting  his  resignation  is  obliged  to  be  for- 
mally made  certain  of  this  fact.  yCf.  Bull  of  Pius 
V.  Quanta  EcclesiQ3  n.  j.)  According  to  the  III 
Council  of  Baltimore  n.  38,  VII,  the  rector  may 
show  a  pension  as  his  means  of  support.  He  may 
also  show  personal  property.  When  old  age  or  ill 
health  is  alleged  as  a  reason,  it  is  scarcely  possible 
to  give  a  general  rule  for  judging  it.     Sixty  years  is 


FORM   FOR    RESIGNATION.  129 

by  common  consent  considered  old  ag^e;  but  fifty 
years  is  also  sufficient  in  law.  Much  depends  on  the 
view  of  the  bishop.  Amon^jf  reasons  for  resig"nation, 
admitted  in  law,  and  mentioned  in  the  Bull  of  Pius 
V,  n.  58,  are:  Old  a^e,  ill  health,  crime,  ecclesias- 
tical censure,  impossibility  or  unwilling"ness  to  serve 
the  benefice,  obtaining-  another  benefice,  entrance 
into  a  religious  order,  impossibility  of  residing  in  the 
parish  because  of  the  deadly  enmity  of  the  people 
ag'ainst  the  pastor.  It  should  be  remarked  that  only 
the  religious  profession  actually  vacates  the  benefice: 
enterinir  the  novitiate  is  not  sufficient.  The  same 
holds  of  a  priest  leaving  a  diocese  for  which  he  was 
ordained  by  the  title  of  mission.  He  still  belongs 
to  the  diocese  until  he  is  actually  professed,  and  may 
if  refused  by  the  religious  order,  at  any  time  return 
to  his  diocese  and  must  be  re-admitted  and  supported, 
even  though  he  had  agreed  to  leave  forever.  This 
matter  has  been  frequently  decided  b}^  the  Holy 
See  and  the  Apostolic  Delegation,  and  deserves 
careful  consideration.  Not  unfrequently  priests 
are  allowed  by  bishops  to  spend  the  best  years  of 
their  life  laboring  outside  their  own  diocese;  but 
w^hen  ill  health  overtakes  them  they  are  thrown  for 
support  onto  the  diocese  to  which  they  belong-  by 
the  title  of  mission.  This  emergency,  it  seems, 
should  be  forestalled. 

128.  The  following  form  may  be  used  for  resig^n- 
ing-: 

"The  Rev.  N.  personally  appeared  in  the  episco- 
pal curia  of  N. —  and  said  and  exposed  that  he  is 
weighed  down  by  old  age  and  for  this  and  other 
reasonable  causes  it   is  difficult  for  him  to  attend  to 

18 


130  LEGAL    FORMULARY. 

the  cure  of  souls  and  even  impossible  to  fulfill  his 
duties  as  pastor,  and  therefore  he  willing-ly,  spon- 
taneously, unconditionally,  and  without  fraud  or 
chicanery  has  resig^ned,  renounced,  and  does  resig*n 
and  renounce  into  the  hands  of  the  Most  Reverend 
Bishop  N.  N.  the  parish  church  of  Saint  N. —  in 
N. —  with  all  and  sing-ular  its  rigfhts,  appurtenances, 
honors  and  oblig^ations;  and  because  he  has  means 
whereby  otherwise  he  can  live  and  be  properly  sup- 
ported (means  should  not  be  mentioned,  but  document 
showing-  such  means  should  be  filed)  he  asks  that  his 
resignation  be  received  and  accepted,  asserting-  that 
in  the  present  resig-nation  there  neither  has  been  nor 
is  any  fraud,  chicanery  or  taint  of  simony  whatever. 

Thus  I  renounce  and  resig-n  and  insist. 

I,  N.  N.,  irremovable  rector  of  the  church  of  Saint 
N.—  in  N— . 

All  of  which  the  Most  Reverend  N.  N.  Bishop  of 
N.  having  seen  and  examined  and  it  appearing-  by 
testimony  and  other  proofs  that  the  aforesaid  state- 
ments are  true,  the  said  Most  Reverend  Bishop  ad- 
mitted and  accepted  the  aforesaid  resignation  after 
having  received  an  oath  of  the  Rev.  N.  N.  that  in  his 
resignation  there  has  intervened  no  fraud,  trickery 
or  other  illicit  bargain  or  any  taint  of  simony;  and  he 
ordered  the  resig-nation  published.  Witnesses  pres- 
ent were  N.  N.  and  N.  N. 

N.  N.  Bishop's  Chancellor." 

The  publication  of  the  resig-nation  may  be  made  by 
prefixing-  it  to  the  edict  for  concursus  to  fill  the 
vacancy. 

129.  When  a  pension  is  to  be  assigned  a  rector 
that  he  may  resig-n  and  have  support,  for  safety  it 
should  be  assigned  in  writing,  and  the  document 
should  be  executed  before  he  gives  up  possession  of 
his  office.  The  rector  should  demand  this  and  to  pre- 
vent misunderstanding-  a  copy  should  be  retained  in 


ARRANGING   PENSIONS.  131 

the  chancery  office.  The  consent  of  the  H0I3'  See  is 
required  for  imposing-  a  pension  on  parish  churches. 
{Cf.  Benedict  XIII,  Scf>t.  5,  1724.) 

The  bishops  of  Canada  have  this  faculty  in  their 
form  T.:  "Assig^nandi  pensiones  parochis  vel  mis- 
sionariis  ex  infirmitate  resig^nantibus  paroeceas  seu 
missiones  in  quas  per  decem  annos  incubuerunt,  sol- 
vendas  annuatim  a  successore,  non  excedentem  ter- 
tian! partem  fructuum  quolibct  modo  provenientium 
ex  paroeceis  vel  missionibus."  "Voluit  autem  Sanc- 
titas  sua  ut  episcopi  in  praedicta  facultate  exercenda 
expressam  mentionem  facere  debeant  Apostolicae 
Deleg-ationis,  necnon  epocham  adjunofere  facta?  sibi 
concessionis." 

The  following-  form  may  be  used  in  assig-ning-  a 
pension: 

"N— ,  Bishop  of  N— ,  to  Rev.  N.  N.  beloved  in 
the  L/ord,  g-reeting-.  Since  those  priests  who  long- 
have  labored  in  the  vineyard  of  the  Lord  or  have  be- 
come exhausted  and  broken  by  serious  illness  or  are 
otherwise  incapacitated  should  nevertheless  be  prop- 
erly supported,  We  are  desirous  of  providing-  for 
such  of  our  diocese  who  otherwise  mig-ht  not  be  able 
to  live  in  a  becoming-  manner  and  with  the  convenience 
suitable  to  their  sacred  office.  Therefore,  We  will- 
ing-ly  g-ive  ear  to  your  relation  that  3^ou  have  labored 
in  the  diocese  for years  with  honor  and  satisfac- 
tion and  that  vour  health  is  now  so  unsatisfactorv  as 
to  incapacitate  you  from  further  reg-ular  work  and 
especially  from  the  onerous  duties  of  the  pastor- 
ate. Finding-  on  examination  and  by  the  testimony 
in  the  acts  that  the  aforesaid  relation  is  based  on 
fact  and  truth,  in  order  that  you  may  have  proper 
support  after  you  have  resig'ned  3^our  parish  or  mis- 
sion. We  hereb}"  assig-n  to  you,  after  consultation 
with  our  diocesan  consultors,  the  sum  of dollars 


132  LEGAL    FORMULARY. 

per  annum,  payable  quarterly,  out  of  the  Infirm 
Priests'  Fund  (or  other  source  as  the  case  may  be) 
belong^ing-  to  this  diocese;  (allowing-  you  also  the 
title  of  "rector  emeritus"  with  its  rank  and  privi- 
legfes,)  and  We  command  the  officials  incharg'e  of  the 
said  fund  to  recoofnize  this  your  cong-ruous  pension 
and  pay  it  at  the  proper  time  to  you  or  to  your  order. 
In  testimony  whereof,  &c.  Given,  &c. 
[l.  s.]  N.  Bishop  of  N. 

N.  N.  Bishop's  Chancellor." 

If  the  pension  is  payable  by  the  parish  vacated 
then  mention  should  be  made  of  the  amount  and  of 
the  apostolic  authority  authorising-  it,  as  stated  in 
the  preceding-  parag-raph. 

Note.  It  may  be  useful  to  quote  substantially  Rule  36  of  the 
Apostolic  Chancery  which  is  applicable  also  in  the  United  States 
and  is  intended  to  preclude  by .  prescription  controversy  regarding 
possession  of  parishes  and  other  benefices. 

"Quicunque  beneficium  ecclesiasticum  cum  titulo  saltern  colorato 
bona  fide  per  integrum  triennium  pacifice  possidet,  valide  et  licite 
in  foro  utroque  illud  retinere  et  a  nemine  amplius  molestari  potest, 
dummodo  simoniace  non  obtinuerit." 


CHAPTER  III. 

ORDER  OF  PRECEDENCE  FOR   CLERGY   IN   THE 

UNITED  STATES. 

130.  To  preclude  confusion  and  dissatisfaction 
some  order  of  precedence  is  as  necessary  in  the 
church  as  it  is  in  the  state.  The  clerory  of  those 
countries  wherein  canon  law  fully  obtains  can  easily 
know  their  exact  position  in  church  ceremonies  and 
social  trathering-s,  for  numerous  authoritative  decis- 
ions have  established  precedents  and  made  the  law 
for  nearly  all  continw'encies. 

In  the  United  States,  however,  because  of  our  pe- 
culiar circumstances,  it  cannot  be  denied  that  much 
confusion  prevails  as  to  the  rii^ht  of  precedence.  If 
a  popular  man  is  put  into  some  ecclesiastical  office 
his  friends  at  once  prefix  a  new  title  to  his  name,  or 
at  least  give  him  the  seat  of  honor  in  social  o-ather- 
inofs.  Not  having-  made  a  special  study  of  the  mat- 
ter, the  new  official  soon  assumes  as  a  rig-ht  what 
may  have  been  accorded  him  as  a  personal  favor. 
Others,  noticing-  this,  do  the  same.  Thus,  it  hap- 
pens, also,  that  the  customs  of  other  countries,  never 
sanctioned  by  Rome,  are  introduced  into  the  United 
States  in  spite  of  the  fact  that  they  have  no  applica- 

This  chapter  on  Precedence  was  published  by  the  author  in  the  N.  V.  Free- 
man's Journal  in  March,  18'>().  at  the  ret|uest  of  several  bishops  and  after  exam- 
ination, correction  and  approval  by  the  Apostolic  Deleyration. 

133 


134  LEGAL    FORMULARY. 

tioti  here  and  that  they  are  contrary  to  the  councils 
of  Baltimore  and  the  decisions  of  the  Sacred  Cong-re- 
g"ation  of  Rites. 

One  has  but  to  examine  the  Catholic  directories 
published  from  1886  to  the  present  time  to  gain  pre- 
cise information  reg'arding'  these  facts.  First  one 
diocese  is  shown  to  have  adopted  a  certain  desig'na- 
tion  for  officials,  and  to  have  arrang^ed  its  clergfy  in 
a  certain  order  of  precedence,  and  then  in  subsequent 
years  other  dioceses  seem  to  have  adopted  this  same 
order,  no  matter  how  erroneous  it  may  be.  Whether 
this  was  the  act  of  the  compilers  or  of  diocesan  offi- 
cials matters  little.  The  fact  remains,  and  remains 
often  without  the  ordinary  of  the  diocese  ever  having- 
decided  the  matter  or  been  consulted  regarding-  it. 
Prom  the  same  source  it  is  also  apparent  that  g"reat 
divergencies  exist  among  the  various  dioceses  of  the 
country,  making  confusion  indeed  great. 

131.  The  question  of  precedence  is  one  not  of  pride 
but  of  rigdit.  If  an  ecclesiastical  person  is  entitled 
to  a  certain  position,  he  should,  and  in  fact  must,  take 
it,  otherwise  confusion  will  ensue  all  along  the  line. 

If  he  is  not  entitled  to  a  certain  position  and  as- 
sumes it,  or  is  allowed  to  assume  it,  an  abuse  is  in- 
troduced, against  which  it  is  the  right  and  at  times 
becomes  the  duty  of  any  cleric  to  protest. 

The  Sacred  Cong'regation  of  Bishops  and  Regu- 
lars has  decided  that  "in  order  to  do  away  with  all 
contests  and  controversies  in  the  matter  of  precedence, 
that  must  be  observed  which  is  observed  in  Rome, 
the  mistress  of  all."  {Barbosa,  Apostolic  Decisions^ 
under  Prcccde?ice  n.  tS.)  And  the  same  Sacred 
Cong'regation  in   regard  to  reg'ulars   of    both    sexes 


ORDER    OF    PRECEDENCE.  135 

decided  that  the  rules  of  precedence  must  be  observed 
"even  thoug^h  one  should  wish  to  <^»-ive  up  his  rig-ht." 
{In  Assisiensi^  jo  OcL,  1600.)  What  here  is  applied 
to  reg'ulars  can  be  applied  also  to  seculars,  for  the 
reason  is  the  same — order  must  be  preserved. 

132.  The  practice  of  the  Roman  Court  is  therefore 
a  safe  ^uide  for- re^jfulating-  precedence  amon^  the 
clergfy  of  a  diocese  in  the  United  States  wherever 
that  practice  can  be  applied.  On  those  points  which 
are  peculiar  to  this  country  the  Third  Council  of 
Baltimore  may  safely  be  followed.  There  is  no 
authority  for  introducing-  into  the  United  States  the 
peculiar  titles,  customs  or  laws  of  France,  Bel<^ium, 
England,  Ireland  or  Germany.  In  fact,  such  cus- 
toms are  forbidden  by  the  councils  of  Baltimore.  It 
seems,  however,  that  some  such  titles  or  customs 
have  been  unwittin(»-ly  introduced.  An  example  in 
point  is  ^•iving"  a  bishop  the  title  "Rio-ht  Reverend," 
brought  over  from  E^ngland,  when,  according  to  the 
practice  of  the  Roman  Court,  he  should  be  entitled 
"The  Most  Reverend"  the  same  as  an  archbishop. 
Another  example  is  the  abuse  of  giving-  deans  or 
vicars  forane  the  title  "Very  Reverend,"  which  was 
brought  over  from  Belgium  and  Ireland,  but  to  which 
they  are  not  entitled  b}^  the  practice  of  the  Roman 
Court  and  decisions  of  the  Sacred  Congregation  of 
Rites,  issued  again  recently. 

133.  If  an  order  for  precedence  ma}^  be  laid  down 
without  offense,  the  following-  may  be  considered  in 
accordance  with  canon  law,  the  Third  Council  of 
Baltimore  and  the  practice  of  the  Roman  Court.  In 
such  a  delicate  matter  it  was  deemed  wise  first  to 
submit  it  to  competent  authorit3\ 


136  LEGAL   FORMULARY. 

First — Precedin|j;-  all  his  clerg-y  is  the  Most  Rev- 
erend Bishop  or  Archbishop  of  the  diocese. 

Second — First  under  him,  and  above  all  other 
priests  of  the  diocese,  is  his  vicar  g'eneral. 

Auxiliary  and  other  bishops  who  may  be  in  a  dio- 
cese take  precedence  over  the  vicar  g-eneral,  except, 
of  course,  in  a  meeting'  over  which*  the  bishop  has 
specially  deputed  his  vicar  g^eneral  to  preside,  or 
unless  the  vicar  general  is  himself  a  bishop.  For 
there  is  a  special  order  of  precedence  among-  bishops 
which  must  be  observed  throug-hout  the  world  and 
must  be  satisfied  before  the  order  of  precedence  to  be 
observed  between  bishops  and  priests  can  be  con- 
sidered. 

Prelates  of  the  Roman  Court,  living-  in  a  diocese, 
follow  among  themselves  the  rules  of  precedence  laid 
down  by  the  court,  protonotaries  apostolic  ranking- 
first,  then  domestic  prelates,  then  honorary  chamber- 
lains of  the  Pope.  The  vicar  general  precedes  all 
these  in  the  diocese  where  he  is  vicar,  but  outside  of 
his  diocese  all  these  prelates  rank  before  him.  If, 
for  instance,  the  bishop  of  a  diocese  should  attend  a 
council  or  ceremony  outside  his  own  diocese,  and 
take  his  vicar  g-eneral  and  a  prelate  with  him,  on 
that  occasion  the  prelate  would  rank  ahead  of  the 
vicar  general,  for  Roman  prelates  have  rank  all  over 
the  world,  and  the  vicar  general  is  out  of  the  terri- 
tory where  he  is  prelate. 

134.  Third— After  these  prelates  may  be  classed 
the  consultors,  and  the  irremovable  rectors  of  the 
diocese  ex  ^quo,  precedence  among-  them  being-  reg*- 
ulated  by  the  time  of  their  ordination,   since  to  some 


ORDER    OF    PRECEDENCE.  137 

few  canonists  there  seem  to  be  no  benefices,   strictly 
speaking",   in  the  United  States. 

These  two  classes  tog^ether  propose  the  names  for 
the  choosing"  of  a  new  bishop  in  case  of  a  vacancy  in 
the  diocese,  and  thus  take  the  place  of  the  cathedral 
chapter  under  canon  law  in  what  may  be  called  its 
most  important  act.  The  diocesan  consultors  also, 
in  other  matters,  chiefly  as  counselors  of  the  bishop, 
ma}^  be  considered  representing"  the  cathedral  chap- 
ter. While  the  Third  Plenary  Council  of  Baltimore, 
n.  30,  lays  down  the  fact,  as  acknowledg"ed,  that 
irremovable  rectors  precede  other  priests,  "Pro 
g"radu  quo  rectores  inamovibilitatis  titulo  condecorati 
aliis  praeeunt  sacerdotibus,  etc.,"  still  the  same 
council  g"ives  the  diocesan  consultors  no  precedence. 
From  this  it  follows  that  by  law  they  can  claim 
none,  at  least  over  irremovable  rectors. 

Further,  the  position  of  irremovable  rector  is  per- 
manent, while  that  of  consultor  is  ad  triennium,  for 
three  years.  Ag"ain,  the  irremovable  rectorship  is 
the  nearest  approach  to  a  benefice  that  we  have  in 
the  United  States;  therefore,  as  precedence  is  regfu- 
lated  by  the  benefice  one  holds  and  by  the  time  one 
acquired  it,  other  thingfs  being"  equal,  the  presumption 
is  in  favor  of  the  irremovable  rector  over  the  consul- 
tor.  But  because  of  their  common  office  of  proposing" 
names  for  a  new  bishop,  they  may  well  be  classed 
tog"ether  ex  aequo,  and  tog"ether  be  g-iven  precedence 
over  the  other  clerg^y  of  the  diocese. 

Rev.  Dr.  Peries,  former  professor  of  canon  law  in 
the  Catholic  Universit}"  of  America,  prefers  separat- 
ing" the  consultors  and  irremovable  rectors  into  two 

bodies,    g-iving"    preference    to    the   consultors.      He 
19 


138  LEGAL    FORMULARY. 

says:  "The  council  of  Baltimore  did  not  attribute 
them  this  place,  but  the  Plenary  Council  was  not 
exhaustive  of  all  matters,  and  has  left  several  un- 
touched." It  is  precisely  to  harmonii^e  what  is  the 
law  and  what  was  possibly  overlooked,  that,  with- 
out depreciating-  either  class,  the  consultors  and  irre- 
movable rectors  are  g^rouped  tog^ether  ex  aequo; 
but  if,  because  of  the  possible  number  of  irremov- 
able rectors,  a  distinction  is  preferred,  (this  seems 
better)  then  these  rectors  among-  themselves  rank 
according-  to  the  time  they  acquired  their  parishes, 
the  rule  being-,  "Prior  in  tempore,  potior  in  jure" — 
First  in  time,  first  in  rig-ht.  {Reg-ukf  ^^,  jicr.  in  6°.) 
Por  this  reason,  also,  these  rectors  should  be  men- 
tioned in  that  order  in  the  directories  immediately 
after  the  consultors.      Then  no  confusion  will  ensue. 

135.  Fourth — After  the  consultors  and  irremovable 
rectors  may  be  placed,  the  rector  of  the  cathedral, 
the  rector  of  the  diocesan  theolog-ical  seminary  and 
rural  deans,  ex  aequo;  precedence  being-  reg-ulated 
among-  them  by  the  time  of  their  ordination.  (If 
any  of  this  class  are  among-  those  of  n.  3  above,  then, 
of  course,  they  rank  under  n.  3.) 

It  seems  proper  that  those  mentioned  in  this  n.  4 
should  have  some  precedence,  not  indeed  over  those 
mentioned  in  n.  3,  i.  e.,  not  over  consultors  and  irre- 
movable rectors,  but  over  the  other  clerg-y.  For  the 
rector  of  the  cathedral,  because  of  it  being-  the 
bishop's  church,  and  the  rector  of  the  seminary,  be- 
cause of  that  position,  seem  entitled  to  some  special 
honor  in  ecclesiastical  functions,  thoug-h  not  in 
others,  according-  to  the  Sacred  Cong-reg-ation  of 
Rites,  June  16,  1608. 


ORDER   OF   PRECEDENCE.  139 

Rural  deans,  accorclin<4-  to  at  least  sixteen  decis- 
ions of  the  Sacred  Congreg^atiou  of  Rites,  g^iven  to 
different  countries,  and  made  of  universal  applica- 
tion, have  no  precedence  over  other  priests,  except 
only  in  those  acts  wherein  they  are  the  delegates  of 
the  bishop.  "A  vicar  forane  or  dean,  by  reason  of 
that  office,  has  no  precedence  in  choir,  in  sessions,  in 
processions  and  in  other  acts  and  ecclesiastical  func- 
tions over  other  parish  priests,  canons  and  priests 
older  and  more  worthy  than  himself;  but  the  vicar 
or  dean  must  stand,  sit  and  walk  in  the  place  of  his 
reception  and  dio-nity  just  as  if  he  were  not  a  vicar 
forane  or  dean,  both  with  the  cotta  and  w^ithout  it, 
notwithstanding-  any  and  every  order  of  the  bishop 
to  the  contrary,  except  only  in  those  cong-reg-ations 
or  conferences  which  are  held  each  month  b}^  order 
of  the  bishop,  in  which,  as  the  deleg-ate  of  the  bishop, 
he  should  precede  all;  but  not,  however,  in  the  pro- 
cession, mass  and  other  acts  which  take  place  be- 
fore or  follow  the  conference."  And  in  another  de- 
cree, intending-  to  eliminate  even  the  custom,  the 
same  Sacred  Cong-reg-ation  ordered  the  observance 
of  the  above  decree,  "notwithstanding- any  and  every 
custom  to  the  contrary."  (C/.  FcD'aris  snh  vcrho, 
Vicarius  Foranciis.)  Therefore  Rev.  Dr.  Smith  in 
his  "Elements"  No.  441  is  in  error. 

Hence  also  /^ittelli  {Apparatus  Juris  Canoiiici,  p. 
14^,)  writing-  of  our  present  time,  says  plainly  : 
"Any  custom  to  the  contrary  is  an  abuse."  This 
author,  it  may  be  remarked,  was  the  official  of  the 
Sacred  Con^^reg-ation  of  the  Propag-anda,  and  pub- 
lished his  work  in  1888  (after  the  council  of  Balti- 
more) especially    for   use   in  the    United    States   and 


140  LKGAIv    FORMUIvARY. 

countries  similarly  situated  in  reference  to  canon  law. 
Craisson,  in-  his  Manuale,  n.  634,  lays  down  the 
same  doctrine.  Benedict  XIV,  in  his  work,  De 
Synodo  Dioecesana,  lib.  Ill,  10,  7,  when  he  quotes 
Bonhomius,  seems  to  have  overlooked  these  decis- 
ions of  the  Sacred  Conofreg*ation  of  Rites,  which  con- 
tradict and  nullify  the  authority  he  quotes.  He  him- 
self lays  down  no  precedence  in  this  matter. 

Still,  the  Third  Council  of  Baltimore,  after  sug"- 
g'esting  that  rural  deans  might  be  appointed  with 
advantag-e  to  the  bishop,  and  after  sugfgesting-  what 
duties  might  be  assig^ned  them,  says  (n.  29)  that  or- 
dinaries ought  to  give  these  vicars  forane  certain 
faculties,  more  or  less  extensive,  and  also  a  certain 
pre-eminence  among-  rectors.  It  must  be  noted  that 
deans  are  not  made  of  obligation  by  the  council,  nor 
when  appointed  does  the  council  itself  g^ive  them  any 
precedence.  Hence,  deans  have  no  canonical  or  leg^al 
precedence,  and  the  council  herein  does  not  militate 
against  the  decisions  of  the  Sacred  Cong-reg^ation  of 
Rites  and  the  teaching-  of  canonists.  However,  the 
council  suggests  that  ordinaries  who  appoint  deans 
should  give  them  some  pre-eminence  or  prominence 
among  rectors.  Bishops  cannot  give  them  precedence 
over  irremovable  rectors,  for  these  rectors  are  given 
precedence  by  the  law  itself  over  other  priests.  There- 
fore, if  the  bishop  wishes  to  g^ive  prominence  among 
rectors  to  his  deans  he  can  give  it  them  among*  mov- 
able rectors  and  other  priests.  Por  this  reason 
deans  are  placed  with  the  rector  of  the  cathedral 
and  the  rector  of  the  seminary  under  n.  4.  Prom 
this,  as  well  as  from  the  practice  of  the  Roman 
Court,    it  follows   that  deans  are  in  nowise  entitled 


ORDER   OF   PRECEDENCE.  141 

to  be  called  "Very  Reverend."  To  authorize  such 
a  title  for  them  it  would  be  necessary  to  call  all  con- 
suitors  and  irremovable  rectors  "Very  Reverend," 
which  is  quite  preposterous.  This  question  was 
determined  also  for  our  own  times  by  the  S.  C.  Kit. 
2  Sept.  1871,  in  Trifluvian.  (Three  Rivers,  Canada) 
where  it  was  decided,  "a  vicar  forane  has  pre-emi- 
nence or  precedence  over  other  priests  of  the  place 
only  in  those  meeting's  at  which  he  is  i^resent  as  the 
deleg'ate  of  the  bishop."  {Cf.  Collect.  Prop.  />.  7/, 
n,  iy6.) 

136.  Fifth — Under  the  fifth  head,  unless  they  rank 
hig'her  because  of  other  positions,  may  be  placed  ex 
aequo  the  chancellor  and  the  secretary  of  the  bishop, 
if  they  are  priests,  the  fiscal  procurator,  the  pro- 
fessors of  the  theolo«fical  seminary,  the  examiners  of 
the  clerg"y;  thoug"h  it  must  be  remarked  that  the  law 
itself,  as  was  pointed  out  in  previous  chapters,  g^ives 
none  of  these  precedence  over  simple  rectors  or  rec- 
tors ad  nutum.  None  of  these  by  any  fiction  of  law 
may  claim  the  title  "Very  Reverend."  If,  however, 
a  distinction  is  made,  then 

Sixth — Following'  these  officials  come  movable 
rectors. 

Seventh — Then  chaplains  of  public  institutions. 

Eighth — And  lastly,  assistants  or  coadjutors  to 
the  rectors  of  parishes. 

There  being*  strictly  speaking*  no  benefices  in  the 
United  States,  except  the  irremovable  rectorships, 
the  diocese  itself  must  be  considered  the  benefice  in 
this  respect.  Hence  precedence  is  reckoned  from  the 
time  of  ordination,  but  in  the  case  of  priests  incardi- 
nated   from  another  diocese  it  is  reckoned  from  the 


142  LEGAL   FORMULARY. 

date  of  their  admission  into  the>diocese,  not  from  the 
time  of  their  ordination. 

Ninth — The  regfular  clerg^y  always  yield  prece- 
dence to  the  secular  clerg^y,  so  that  assistant  priests 
of  the  secular  clerg-y  precede  all  the  regular  clerg-y, 
even  if  the  reg^ulars  have  charge  of  parishes  and  are 
seniors  in  ordination.     Such  is  the  law. 


CHAPTER    IV. 

THE  SACRAMENTS — BAPTISM,    CONFIRMATION,  HOLY 

EUCHARIST. 

137.  The  parish  priest  is  oblig^ed  to  administer  the 
sacrament  of  baptism  and  to  keep  a  record  of  each 
one  baptised.  E^xcept  in  case  of  necessity  this  sac- 
rament should  be  administered  in  the  church.  The 
form  for  recording*  it  may  be  found  in  the  Roman 
Ritual.  The  record  should  contain  the  full  name  of 
the  child,  the  parents,  sponsors,  minister,  tog"ether 
with  the  date  of  birth  and  of  baptism.  Each  record 
must  be  sig^ned.  Great  indeed  is  the  importance  of 
the  record  of  baptism,  especially  for  those  about  to 
receive  holy  orders. 

138.  The  parish  priest  is  also  oblig-ed  to  keep  a 
record  of  all  those  confirmed  in  his  parish.  The 
bishop  of  the  diocese  is  the  ordinary  minister  of  this 
sacrament;  nor  should  any  but  diocesans  be  confirmed 
except  by  consent  of  the  bishop  to  whose  diocese 
they  belong".  {Mo)iacclli,  t.  f,  f.  5,  )i.  /.)  Custom, 
with  the  tacit  consent  of  bishops,  in  the  United 
States,  seems  a  sufficient  permission.  It  is  the  duty 
of  the  bishop  to  administer  confirmation,  and  there- 
fore he  cannot  exact  an3^thing"  by  way  of  expenses 
for  g-iving"  it.  {Cf.  Barbosa  cie  off.  Ef>.  all.  jo,  ?i.  to; 
Moiacclli^  t.  10,/.  7,  )i.  I.)  He  may  g-ive  it  on  the 
occasion  of  his  visitation  of  the  parish,  for  which  he 

143 


144  LEGAL   FORMULARY.  . 

is  entitled  to  his  actual  maintenance.  But  he  may 
not  tax  this  maintenance  in  money;  he  must  accept 
it  in  victuals.  (C/.  S.  Cong,  Cone,  in  Larin.  12 
April,  i6gS;  Monacclli,  t.  5,  /.  2,  n.'  20-2^.)  The 
III  Council  of  Baltimore,  n.  14,  says  that  in  diocesan 
synod  provision  should  be  made  for  the  expenses  of 
this  visitation. 

The  record  to  be  kept  by  the  pastor  should  contain 
the  full  names  of  those  confirmed,  with  the  names  of 
their  parents  and  sponsors.  An  alphabetical  list 
may    be  made   of  those    confirmed,    headed    by    the 

words:     "On   the  day  of  A.   D.   the 

Most  Reverend  Bishop  N.  N.  confirmed  the  follow- 
ing" in  the  church  of  Saint  N. —  in  N. — "  At  the 
bottom  of  this  list  the  parish  priest  affixes  his  sig"- 
nature. 

139.  Only  those  baptised  may  be  confirmed.  The 
Roman  Catechism  says  that  confirmation  should 
hardly  be  g'iven  to  those  young^er  than  seven  years, 
and  that  the  usual  age  for  the  sacrament  is  the 
twelfth  year.  Those  receiving-  it  can  then  be  in- 
structed in  the  faith.  If  they  have  made  their  first 
communion,  they  should  receive  the  Holy  Eucharist, 
after  confession,  as  a  preparation  for  confirmation. 
If  possible  the  candidates  should  be  fasting-. 

Usually  the  bishop  bring^s  with  him  the  chrism 
needed  in  confirmation.  In  the  Latin  church  it  is  a 
mixture  of  olive  oil  and  balsam,  blessed  by  the 
bishop.  The  chrism  of  the  Greeks  is  made  of  thirty- 
five  aromatic  herbs  besides  the  oil  and  balsam. 

140.  The  parish  priest,  however,  is  required  to 
procure  the  holy  oils  needed  for  the  sacraments  and 
keep  them  in  the  church  in  a  proper  place  under  lock. 


HOLY    OILS.  145 

These  oils  may  not  be  sent  by  express,  because  of 
the  irreverence  in  such  carria<»-e,  nor  broug^ht  by  a 
layman.  [Cf.  Bencd.  XI V^  lust.  8i,  n.  5.)  They 
must  be  procured  from  the  bishop  of  the  diocese  and 
renewed  each  year.  (C/.  Ritual^  Rubric  ^2 ;  Cava- 
licri  on  Rubrics,  vol.  ^,  26,)  Bishops  are  positively 
prohibited  from  making-  any  charg^e  whatever  for 
the  holy  oils.  {.Cf.  Benedict  XIV,  De  Syn.  Diocces- 
ana  5,  7,  /o.) 

It  may  be  well  to  cite  a  decree  of  the  S.  Cong"re- 
g"ation  of  Rites  g-iven  Jan.  31,  18%:  "Instante 
episcopo  Anneciensi,  ut  permittatur  usus  s.  oleorum 
anno  pra^cedente  benedictorum  usque  ad  sabbatum 
ante  Pentecosten  exclusive,  ne  eo  tempore  absint  a 
propriis  para^ceis  rectores  *  ^  ^^  S,  R,  C.  juxta 
votum  commissionis  liturg-icas  rescribendum  censuit: 
parochus  curet  ut  presbyter  vel  clericus,  si  possibile 
sit  in  sacris  constitutus,  nova  olea  recipiat.  Quodsi 
aliquod  adhuc  exstet  impedimentum  idem  parochus 
vel  per  se  vel  per  alium  sacerdotem  benedicat  fontem, 
sine  sacrorum  oleorum  infusione,  qua?  privatim 
opportuno  tempore  fiet;  nisi  aliquem  baptisare  debet; 
tunc  enim  in  ipsa  benedictione  solemni  Vetera  olea 
infundat.      Atque  ita  servari  mandavit." 

141.  The  Holy  Eucharist  is  "the  sacrament  of  the 
body  and  blood  of  Jesus  Christ  under  the  appearances 
of  bread  and  wine."  In  the  Eucharist  Christ  is 
trul}^  really  and  substantialh^  present  with  bod3% 
soul  and  divinity.  Christ  is  wholly  present  perma- 
nently under  each  species,  and  in  ever}^  part — at 
least  sensible — of  each  species.  In  the  sacrament  of 
the  Eucharist  there  occurs    a    true   transubstantia- 

tion,  or  a  real  conversion  of  the  whole  substance  of 
20 


146  LEGAL    FORMULARY. 

the  bread  into  the  body,  and  of  the  wine  into  the 
blood  of  Christ,  so  that  after  consecration,  nothing* 
but  the  appearances  remain  of  the  bread  and  wine. 
These  points  are  of  catholic  faith. 

142.  Kvery  parish  priest,  or  vicar  having*  the  care 
of  souls,  is  oblig"ed  in  justice  to  administer  the  sac- 
rament of  the  I^ucharist  to  his  subjects  if  properly 
disposed,  not  only  during-  Easter  time  and  at  death, 
but  whenever  the}^  reasonably  request  it.  A  priest 
when  celebrating"  mass  administers  the  Eucharist  to 
himself.  He  may  also  from  devotion,  in  the  absence 
of  another  priest,  g-ive  himself  the  Eucharist  without 
saying" mass.  C Cf.  St.  AlfJionsiis,  n.  2^j ;  Lehmkuhl, 
n.  136.)  Ordinarily  when  a  pastor  allows  a  priest  to 
celebrate  mass  at  the  altar  of  the  Blessed  Sacrament 
in  his  church,  he  is  supposed  also  to  g^rant  permis- 
sion to  administer  the  Eucharist  to  the  laity,  who 
receive  from  devotion.  This  is  not  the  case  with 
Easter  communion.  Parishioners  must  by  law  re- 
ceive'their  Pascal  communion  in  their  parish  church 
and  from  their  own  pastor.  {S.  Co)i§\  Ef>p.  et  RR. 
21  Jan.  1848.) 

143.  By  law  only  cathedral  and  parish  churches 
and  those  of  reg"ulars  who  make  solemn  vows  may 
retain  the  Sacred  Eucharist.  Others  may  obtain 
the  privileg-e  by  apostolic  indult.  It  is  forbidden  to 
keep  the  Blessed  Sacrament  in  an}^  other  place  than 
the  tabernacle  placed  in  the  middle  of  the  altar. 
(Cf.  S.  Rit.  Cong.  Aiig-.  i86j.)  This  tabernacle 
should  be  reg^ularly  of  wood,  g-ilded  outside  and  cov- 
ered with  silk  inside.  A  corporal  should  be  on  the 
floor  of  it.  The  outside  should  be  covered  with  a 
canopy    of  silk,   wool    or    even  cotton  if    the    richer 


CERTIFICATE    OF    COMMUNION.  147 

materials  cannot  be  obtained.  The  canopy  should 
correspond  to  the  color  of  the  day,  but  if  this  is  im- 
possible then  it  should  always  be  white.  (S.  Ril. 
Cong-.  21  July  1 8^^.) 

The  tabernacle  must  be  locked  and  the  key  kept 
by  the  pastor  of  the  parish.  It  must  not  be  left  un- 
g'uarded  either  around  the  altar  or  in  the  sacristy, 
nor  can  it  be  kept  by  the  sacristan  whether  a  relig- 
ious or  a  layman.     (S.  Ril.  Cong.  22  Feb.  /S9J') 

144.  Sometimes  it  is  necessary  to  g^ive  a  person  a 
certificate  that  he  has  received  communion.  In  such 
case  it  seems  imprudent  and  dang^erous  to  state 
whether  or  not  the  person  first  went  to  confession 
unless  to  certify  that  an  excommunication  was 
removed.  The  fact  of  confession  is  implied  in  the 
fact  of  communion.  If  his  communion  was  .sacri- 
leo-ious,  his  confession  could  easily  be  the  same. 
Hence  mention  should  not  be  made  of  confession  or 
absolution.  The  parish  priest  is  not  bound  by  such 
a  certificate  of  another  priest  if  he  knows  that  the 
one  presenting-  it  is  a  public  sinner  at  home  or  is  ex- 
communicated. Catholics  who  fulfill  their  oblig-a- 
tions  without  shirking-  usually  receive  communion  in 
their  own  parish.  The  following'  form  seems  suf- 
ficient: 

"To  all  whom  it  may  concern.  I,  parish  priest  of 
N — ,  hereby  certif}^  that  N.  N.,  personally  known  to 
me,  received  the  Holy  Kucharist  in  the  church  of  St. 
N —  in  N —  on  the  day  of A.  D.  — .     Sig-ned 

N.  N.     Dated  &c." 

145.  The  Eucharist  besides  a  sacrament  is  also  a 
sacrifice,  which  is  called  the  mass.  It  is  the  one 
sacrifice  of    the  new   law  and    consists  essentially   in 


148  LEGAL    FORMULARY. 

the  transubstatitiation  of  the  bread  and  wine  into  the 
body  of  blood  of  Christ.  St.  Alphonsus  teaches  as 
more  probable  that  the  communion  also  pertains  to 
the  essence  of  the  sacrifice.  The  mass  is  a  sacrifice 
of  adoration,  thanksg'iving,  satisfaction  for  sin  and 
its  punishment,  and  impetratiou  for  benefits  and 
necessities. 

146.  The  sacrifice  may  be  offered  and  applied  for 
anyone,  except  those  from  whom  it  is  forbidden  by 
the  church.  Such  are  only  excommunicated  persons. 
{Be7ied.  XIV.  Con.  In  Silver,  n.  27,  18  Mar.  1755.') 
Hence  it  may  be  applied  even  for  infidels,  not  only  in 
g'eneral  but  also  individually.  However,  a  distinc- 
tion should  be  made  between  masses  for  the  dead  and 
for  the  livino-,  between  private  and  public  celebra- 
tion. Private  masses  can  be  said  for  the  conversion 
of  non-catholics  but  no  announcement  of  the  name 
can  be  made,  lest  there  be  scandal  or  the  people 
think  such  a  priest  is  acting-  in  the  name  of  the 
church.  (^S.  Cong-.  Inqiiis.  ig  A-pr.  iSjy.)  Asked 
"whether  it  is  lawful  for  priests  to  celebrate  mass 
for  the  intention  of  Turks  and  other  infidels  and  to 
receive  from  them  an  alms  for  the  application  of  the 
mass"  the  same  S.  Cong^regation  on  July  21,  1865, 
replied,  that  it  is  lawful  provided  there  is  no  scandal 
nor  any  evil,  error  or  superstition  in  the  offering*. 
Solemn  public  masses  are  conceded  only  for  living* 
rulers  in  the  state  and  then  only  for  the  welfare  of 
the  state.  But  no  solemn  mass  can  be  offered  for  a 
deceased  non-catholic  ruler,  even  the  hig"hest  in  the 
state,  for  then  it  would  be  a  public  solemn  service  for 
a  deceased  person,  not  for  the  state.  This  is  strictly 
forbidden,   as  Greg^ory  XVI  declared  in  1842:      "It 


STIPENDS   FOR    MASSES.  149 

is  forbidden  by  both  the  ancient  and  modern  disci- 
pline of  the  church  that  men  who  die  in  the  external, 
notorious  profession  of  heresy  should  be  honored  by 
catholic  rites."  At  most  therefore  a  private  mass 
with  the  above  restrictions  ma}^  be  said  for  a  de- 
ceased non -catholic  without  an}"  public  announcement 
whatever.  Commemorative  services  for  non-catholics 
are  forbidden  in  catholic  churches. 

For  a  similar  reason  prayers  nia}^  not  be  asked  or 
said  publicl}^  in  church  for  the  repose  of  the  soul  of 
a  non-catholic,  thouf^h  they  ma\"  be  offered  privately. 
Public  prayer  for  the  dead  is  undoubtedly  a  "cath- 
olic rite." 

147.  It  is  law^ful  to  receive  a  stipend  or  alms  for 
the  application  of  a  mass  which  a  priest  is  not 
oblig-ed  to  say  for  another;  but  when  this  stipend  is 
received  there  arises  a  strict  obligration  to  apply  the 
mass  as  requested.  The  amount  of  the  stipend  is 
usually  determined  by  diocesan  statutes.  A  priest 
who  has  received  a  larg'er  stipend  than  usual  can- 
not licitly  or  justly  commit  to^  another  the  celebra- 
tion of  the  mass  and  retain  part  of  the  unusual 
stipend;  unless  it  is  morall}^  certain  that  this  excess 
in  the  stipend  w^as  g*iven  3,s  /^(s  stolcc  or  on  account  of 
the  dig'nity  or  position  of  the  pastor,  as  occurs  in  nup- 
tial or  funeral  masses.  i^S.  Coirr.  Cone.  25  Jid}\ 
iSy^.)  In  such  case  the  priest  who  says  the  mass  may 
be  o-iven  only  the  usual  stipend  in  accordance  %vith 
diocesan  statutes  for  low  and  high  masses.  The 
pastor  may  retain  the  excess  as  ;V<'j>  stolcE.  Likewise 
if  the  excess  of  the  alms  was  g'iven  because  of  friend- 
ship, relationship,  g^ratitude,  which  can  easil}"  be 
:   nown,    a    priest    ma\"    commit    the    celebration     to 


150  LEGAL   FORMULARY. 

another,  g-iving"  only  the  usual  stipend.  But  it  is 
strictly  forbidden  to  collect  masses,  receiving-  a  cer- 
tain stipend,  and  then  send  them  to  other  places  to 
be  said  for  a  smaller  stipend.  Pius  IX  in  Aposiol- 
icce  Sedis  has  attached  excommunication  to  this  un- 
lawful practice. 

148.  Urban  VIII  on  June  21,  1625,  prohibited  the 
rectors  of  churches,  whether  secular  or  regfular, 
from  accepting-  a  perpetual  foundation  of  masses 
without  the  written  consent  of  the  bishop  or  vicar 
g-eneral  in  the  case  of  seculars,  and  of  the  gfeneral  or 
provincial  in  the  case  of  reg-ulars.  He  further 
ordered  that  the  money  left  or  donated  for  this  pur- 
pose should  be  immediatel}^  put  into  immovable  pro- 
ductive property  with  express  and  individual  men- 
tion of  the  oblig-ation  annexed  to  it.  He  further 
ordered  that  all  alms  boxes  having-  the  inscription 
"alms  for  masses"  should  be  removed  from  churches, 
and  the  S.  Cong-,  of  the  Council  later  declared  by 
authority  of  the  same  pope  that  this  order  included 
also  those  boxes  placed  in  the  church  on  All  Souls' 
day.  However  the  S.  Cong-,  of  the  Council  on  Jan. 
27,  1877,  did  not  condemn  the  practice  of  coUecting- 
from  the  faithful  on  All  Souls'  day  a  rich  alms  and 
celebrating"  therefor  but  the  one  hig-h  mass  on  that 
day.  But  the  S.  Cong-reg-ation  g-ave  orders  that  the 
people  should  be  properly  instructed  that  only  the 
one  mass  would  be  said  for  all  the  alms. 

149.  The  g-eneral  rule  according-  to  the  present 
discipline  of  the  church  is  that  a  priest  may  say  only 
one  mass  a  day,  except  on  Christmas  when  three  are 
allowed.  But  by  faculty  of  the  Holy  See  for  canon- 
ical reasons  bination  is  allowed,    with  previous  per- 


FACULTY    FOR    BINATION.  151 

mission  of  the  ordinary  of  the  diocese.  ,This  faculty 
is  ^iven  the  priest  because  of  necessity,  which  means 
not  the  poverty  of  the  priest,  but  the  spiritual  needs 
of  the  people  and  the  scarcity  of  priests.  Hence,  if 
a  second  priest  can  be  had,  bination  is  not  allowed. 
Neither  is  it  allowed  for  the  convenience  of  those 
who  wish  to  hear  mass  in  private  oratories,  whether 
they  be  seculars  or  relig"ious.  Two  cases  are  ^^iven 
by  Benedict  XIV  in  which  he  says  bishops  by  law 
may  g*rant  the  faculty  of  binating-:  First,  to  a  priest 
who  has  charge  of  tw^o  parishes  or  of  two  congrega- 
tions so  distant  that  one  cannot  be  present  when  the 
priest  is  celebrating  for  the  other  on  a  Sunday  or 
holyday  of  obligation;  second,  when  there  is  only 
one  church,  but  the  people  cannot  all  attend  the  one 
mass.  In  these  two  cases  the  law  itself  gives  the 
priest  the  right  to  say  tw^o  masses,  but  always  after 
the  bishop  has  acknowledged  the  necessity.  In  fact, 
Benedict  XIV,  1.  6,  de  Synod.  Diccc.  says  that  a  priest 
with  two  parishes  is  bound  to  binate.  From  this  it 
follows  that  less  necessity  is  required  for  using  the 
extraordinary^  faculty  to  binate  than  the  necessity  for 
which  the  law  allows  it. 

150.  If  a  number  of  the  faithful,  unless  the  priest 
binates,  would  miss  mass  to  which  they  are  bound 
there  is  sufficient  reason  for  his  saying  two  masses. 
Twenty  was  decided  a  sufficient  number  in  one  case. 
(S,  Conor,  Cone.  12  Jcui.  ^S^j.)  And  again  in  the 
case  of  prisoners  ten  or  fifteen  was  declared  sufficient. 
This  declaration  can  be  extended  also  to  those  in 
hospitals  or  cloistered  convents.  The  priest  can- 
not accept  a  stipend  for  more  than  one  mass  in  case 
of  bination,  nor  for  either  if  he,  as  pastor,  is  obliged 


152  LEJGAL    FORMULARY. 

to  apply  one  ^ass  for  his  people.  (S.  Cong-.  Prop, 
Oct.  75,  iS6j.)  But  for  special  reasons  Pius  IX  on 
the  above  date  g^ranted  certain  bishops  the  faculty 
to  allow  their  missionary  priests  to  accept  stipends 
for  both  masses.  However,  the  S.  Con^.  of  the 
Council  has  gfiven  a  recent  reply  that  a  priest  who 
binates  may  apply  the  second  mass  for  a  deceased 
fellow  priest  for  whom  by  the  oblig^ation  of  a  pact 
or  society  he  is  bound  to  offer  some  masses.  Fur- 
ther, because  the  law  allows  three  masses«on  Christ- 
mas day,  a  priest  may  satisfy  three  obligations  on 
that  day. 

151.  By  common  law  mass  should  be  celebrated  only 
in  a  church,  which  has  been  blessed  or  consecrated  and 
is  not  polluted  or  interdicted.  Bishops  may  allow 
mass  also  in  public  oratories  (i.  e.,  those  w^hich  are 
free  to  all  and  have  a  door  opening-  on  the  street,) 
and  in  all  relig-ious  and  pious  places.  A  religious 
place  is  one  devoted  to  works  of  mercy  or  piety, 
erected  with  the  approval  of  ecclesiastical  authority, 
such  as  a  seminary  or  convent.  .A  pious  place  is  a 
charitable  institution  founded  with  or  without  eccle- 
siastical authority,  such  as  an  orphan  asylum,  hospi- 
tal, house  of  refuge.  BishojDS  cannot,  without  an 
indult  of  the  Holy  See,  alloVv  mass  to  be  said  in  a 
private  oratory,  except  possibly  once  or  twice  for  a 
grave  reason.  By  the  extraordinary  faculties  re- 
ceived from  the  Holy  See  the  bishops  of  the  United 
States  may  communicate  to  their  priests  permission 
to  say  mass  sub  dio  ct  sub  terra,  in  loco  tamen  de- 
cently si  allter  celebrarl  non  possit,''  But  this  does 
not  include  the  establishment  of  a  private  oratory 
and  granting  the  permanent  privilege  of  celebrating 


GIVING   CELEBRET.  153 

mass  therein.  No  secular  entertainments  are  al- 
lowed in  a  church-buildin<>-  which  has  been  blessed. 

152.  The  pastor  of  the  parish  ofives  permission  to 
celebrate  in  his  church,  subject  to  the  diocesan  reg-- 
ulations  concerning"  permission  to  be  received  from 
the  bishop.  Strangers  to  a  diocese  must  always 
procure  a  "celebret"  from  the  bishop,  who  may  limit 
it  as  to  time  and  impose  conditions;  but  if  they  have 
letters  he  cannot  keep  them  from  saying"  mass  simply 
because  they  are  strangers. 

The  following  form  may  be  used  in  granting  a 
celebret: 

*'N. —  Bishop  of  N. —  We  grant  permission  to  cel- 
ebrate mass  in  the  churches  of  this  city  and  diocese, 
(excepting  churches  of  monks  and  the  chapels  of 
convents)  to  the  Rev.  N.  N. —  a  priest  of  the  diocese 
of  N. — ,  as  shown  by  commendatory  letters  of    his 

ordinary  dated and  exhibited  in   our  chancery; 

this  permission  being"  given  for months  and  on 

the  following  conditions:  That  on  all  Sundays  and 
holidays  he  shall  be  present  at  the  services  in  the 
church  of  the  parish  wherein  he  resides;  that  he 
shall  observe  the  canonical  regulations  regarding 
'cohabitatio  cum  mulieribus;'  that  he  shall  wear  the 
Roman  collar  and  clerical  dress;  that  he  shall  submit 
a  certificate  of  the  pastor  of  the  parish  wherein  he 
has  resided,  stating-  that  these  conditions  have  been 
fulfilled,  before  this  permission  will  be  renewed. 
[l.  s.]  N.  Bishop  of  N.  (or  V.  G.) 

N.  N.  Bishop's  Chancellor." 

These  conditions  may  seem  strange  to  some,  but 
experience  teaches  that  they  are  prudently  at- 
tached. They  may  prevent  scandal  to  the  faithful 
and  inconvenience  and  anno3^ance  to  pastors,  espec- 
ially in  places  where  strange  priests  dwell  for  a  con- 
21 


154  LEGAL    FORMULARY. 

siderable  time.  The  conditions  may  be  omitted  if 
the  "celebret"  is  granted  for  only  a  short  time. 
The  bishop  cannot  compel,  but  only  exhort  rectors 
of  churches  to  furnish  necessaries  for  priests  who 
wish  to  say  mass  in  their  churches.  (S.  C.  Cone, 
75  Dec.  1 70 J.) 

153.  Permission  to  binate  should  be  asked  of  the 
bishop  and  be  obtained  in  writing*  even  when  the  law 
allows  it;  the  reasons  should  be  stated  in  the  appli- 
cation. Following*  are  forms  for  asking*  and  con- 
ceding* permission: 

"Place  and  date . 

Most  Reverend  Bishop:  In  the  parish  of  N. — 
in  N. —  of  which  I  have  charge,  it  is  impossible  for 
all  the  people  to  attend  one  mass,  because  the  church 
is  too  small,  (some  must  remain  at  home  while  others 
attend  or  other  reason)  so  that  unless  I  say  a  second 
mass  at  least  twenty  (g'ive  approximate  number) 
will  not  be  able  to  hear  mass,  as  obliged,  on  Sundays 
and  holy  days.  Wherefore  I  request  the  iDrivileg'e 
of  binating*  on  such  days  of  obligation  for  the  people. 
With  great  respect  I  remain, 

Yours  obediently, 

N.  N." 
To  Most  Reverend  N.  N.,  Bishop  of  N. 


? ) 


"N.  Bishop  of  N.—  To  Rev.  N.  N.,  rector  of 
N. —  greeting:  Since  the  common  law,  as  stated 
by  Benedict  XIV,  1.  ,6,  de  syn.  dicec,  authorizes  a 
priest  in  charge  of  souls  to  celebrate  two  masses  in 
case  of  necessit}^  on  the  part  of  the  people;  and  since 
it  is  shown  that  such  necessity  exists  in  N. —  of 
which  you  have  charge;  therefore  We  hereby  judge 
that  such  necessity  exists  and  grant  that  you  or  the 
priest  for  the  time  being*  in  charg*e  of  N. —  may 
licitly  celebrate  two  masses  on  all  Sundays  and  holy 


i 


FOUNDATION    OF    MASSES.  155 

days  of  obliofation,  under  the  prescriptions  laid  down 
for  such  cases  by  the  S.  Cong-ret^'ation  of  the  Propa- 
g*anda  and  contained  in  nos.  100  to  106  of  III  Plen- 
ary Council  of  Baltimore.  In  testimony  whereof  Sic. 
Dated  &c.  N.  Bishop  of  N. 

N.  N.  Chancellor." 

The  bishop  may  also  g'rant  this  permission  by  vir- 
tue of  the  extraordinary  faculty  received  from  the 
Holy  See.  In  this  case  the  necessity  need  not  be  so 
evident;  he  should  then  mention  that  permission  to 
binate  is  g^ranted  by  faculty  of  the  Holy  See,  gfiving* 
date  thereof. 

154.  When  a  sum  of  money  is  paid  to  a  church  as 
a  foundation  for  masses,  if  it  is  to  be  a  perpetual 
contract  the  consent  of  the  bishop  is  first  required. 
When  this  has  been  g-iven  in  writing-  the  following- 
document  may  be  drawn: 

"This  indenture  made  this day  of A.   D. 

between  the  Rev.   N.    N.    pastor  of   St. 


church  in  N —  for  and  in  the  name  of  said  church,  of 
the  first  part;  and  N.  N.  the  executor  of  N.  N.  (or 
as  the  case  may  be)  of  the  second  part;  witnesseth: 
That  the  said  party  of  the  first  part  for  and  in  con- 
sideration of  the  sum  of dollars  to  him  in  hand 

paid  by  the  said  party  of  the  second  part,  the  receipt 
whereof  is  hereby  confessed  and  acknowledg^ed,  does 
by  these  presents,  with  the  written  consent  and  ap- 
proval of  the  Most  Reverend  N.  N.,  the  bishop  of  the 
diocese  of  N —  to  which  the  aforesaid  parish  belong-s, 
ag^ree  and  promise  for  himself  and  his  successors  in 
the  office  of  pastor  of  the  said   church,    that  each 

year  perpetually  (or  for years)  on  the  —  day  of 

— ,  or  as  near  thereafter  as  possible,  he  will  celebrate 
or  have  celebrated  a  higfh  mass  of  requiem  for  the 
repose  of  the  soul  of  the  said  N.  N  (or  as  the  case 
ma}^   be)    without  any   further   trouble  of    any    kind 


156  LEGAL   FORMULARY. 

to  the  party  of  the  second  part  or  his  heirs  or  assig^ns. 

In  witness  whereof  the  said  party  of  the  first  part 
has  hereunto  set  his  hand  and  seal  the  day  and  year 
first  above  mentioned.     (Signature.)  [l.  s.] 

Signed,  sealed  and  delivered  in  the  presence  of  N. 
N.  and  N.  N.  witnesses. 

Diocese  of  .     On  this  day  of  A.  D. 

before  me,    an   ecclesiastical  notary,    appeared 

the  above  Rev.   N.  N.   to  me  personally  known  and 
declared  the  above  to  be  his  free  act  and  deed. 

N.  N.  Notary." 

155.  A  table  of  the  foundations  of  masses  with 
which  a  church  is  burdened  should  be  hung*  in  the 
sacristy  and  a  book  kept  especially  for  the  purpose 
of  recording"  these  oblig'atory  masses  and  noting-  the 
fulfillment  of  the  obligation.  The  examination  of 
this  book  is  one  of  the  points  of  episcopal  visitation. 
In  case  the  obligation  of  masses,  on  account  of  de- 
preciation or  loss  of  the  investment,  is  to  be  reduced, 
proper  application  should  be  made  through  the 
bishop  to  the  Holy  See.  {Urban  VIII,  162^; 
Innocent  XII,  16^4.)  The  same  should  be 
done  if  an  insufficient  amount  has  been  left  by  will 
for  the  obligation  of  masses  specified  in  the  will. 
Obligations  of  masses  left  to  one  church  cannot  be 
transferred  to  another  without  permission  of  the 
Holy  See.     {S,  C.  Cone.  Dee.  /,  1686.) 

Instead  of  this  foundation  of  masses  a  person  while 
alive  may  by  setting  aside  some  property,  with  the 
acceptance  of  the  bishop,  found  a  simple  benefice  to 
which  is  attached  the  obligation  of  saying  certain 
masses  for  the  founder.     This  form  may  then  be  used: 

"N—  Bishop  of  N— .  Since  N.  N.  because  of 
great  devotion  towards  Saint wishes  to  endow 


CREATING    A    BENEFICK.  157 

and  has  endowed  an  altar  in  his  honor  in  the  church 
of  Saint in  N —  with  the  annual  interest  or  rev- 
enue of dollars  to  be  derived   from   permanent 

property,  viz as  is  fully  set  forth  in  an  instrument 

of  endowment  dated and  preserved  in  our  chan- 
cery (with  the  reservation  of  the  jus  paironatiis  of 
presenting*  the  chaplain  whenever  a  vacancy  occurs, 
by  himself  and  his  heirs)  We,  therefore  ag^reein^"  to 
his  desires,  do  by  our  ordinary  power,  and  every 
other  best  way,  manner  and  form  permitted  to  Us  by 

law,   erect  the  said  altar  of  Saint in  the  said 

church  of  Saint in  N —  into  a  perpetual  ecclesi- 
astical benefice,  and  We  wish  and  declare  it  to  be  so 
erected,  and  We  assig^n,  appropriate  and  apply  the 
aforesaid  property  of  the  said  N.  N.  as  and  for  an 
endowment  of  the  said  altar.  Further  We  g^rant 
and  reserve  to  the  said  N.  N.  and  his  heirs  theyV^^^ 
■patronatus  of  presenting"  the  chaplain  or  chaplains  as 
often  as  a  vacancy  may  occur,  who  however  are  to  be 
instituted  and  confirmed  by  Us  and  our  episcopal 
successors,  with  the  oblig^ation  on  the  chaplain,  (who 
is  to  be  presented  within  the  required  time)  of  cele- 
brating* or  having*  celebrated masses  in    ever}^ 

week  for  the  salvation  of  the  soul  of .     Thus, 

saving*  our  episcopal  rig*hts.  We  erect  and  reserve. 
In  testimony  whereof  We  have  ordered  these  present 
letters  and  this  decree  of  erection  sig*ned  by  Us  to  be 
expedited  and  to  be  reg*istered  and  preserv^ed  in  our 
chancery  tog*ether  with  the  aforesaid  instrument  of 
endowment.     Given,  &c.  N.  Bishop  of  N. 

[l.  s.]  N.  N.  Bishop's  Chancellor." 

156.   The  above  form  may  be  used  for  erecting*  any 

other  simple   benefice  by   chang-ing*  the  details,   such 

as  leaving*  out  the  jus  fiatronatus,   but  retaining*  the 

essential  features.     These  are:     That  the  erection 

of  the  benefice  must  be  in  a  church  at  a  certain  altar 

under  the  invocation  of  some  saint  and  that  certain 

free  and  stable  fruitful  property  be   assig*ned  as  an 


158  LEGAL   FORMULARY. 

endowment.  {Monacclli  t.  2,  f.  /,  n.  12.)  This 
property  may  be  deeded  to  the  church  corporation  or 
mort^agfed  to  it  or  leased  for  999  years  or  otherwise 
safe-g*uarded.  A  bishop  may  not  refuse  the  estab- 
lishment of  such  a  benefice  if  left  by  will  or  offered 
when  living".  If  he  refuses,  the  hig"her  authority  on 
recourse  will  supply  the  consent.  (C/.  /.  c.  n  y-S.) 
If  money  is  left  or  g*iven  for  the  purpose  it  must  be 
immediately  invested  in  stable,  productive  property. 
{S.  C.  Cone.  June  21,  162^.)  If  alienated  with  con- 
sent of  the  Holy  See,  the  proceeds  must  be  immediately 
re-invested  with  the  sameoblig^ation  affixed.  {Ibidem.) 

157.  Great  care  should  be  taken  in  drawing-  wills 
which  leave  bequests  for  masses.  The  supreme 
courts  in  various  states  have  rendered  very  diverg^ent 
decisions  on  the  question  whether  such  bequests  are 
valid  and  whether  such  a  trust  can  be  created.  In 
New  York  the  court  of  appeals  in  the  Thomas  Gun- 
ning- case  of  1888  decided  that  a  trust  created  by  the 
testator  leaving-  the  residue  of  his  estate  to  Frederick 
Smyth  and  Henry  Alcock  "to  be  devoted  to  the  pur- 
chase of  masses  for  the  soul  of  the  testator,  the  souls 
of  his  relatives,  and  the  souls  of  all  other  persons  in 
purg-atory"  is  not  valid  in  law.  The  decision  seemed 
based  on  the  point  that  there  was  no  defined  bene- 
ficiary. (Holland  vs.  Alcock,  108  N.  Y.  reports  312.)" 

The  most  important  decision,  however,  was  made 
by  the  supreme  court  of  Illinois,  in  1898,  in  the  case 

*See  also  Ruppel  vs.  Schle^el,  7  N.  Y.  Sap.  936;  In  re  Howard's 
Estate,  25  id.  1111;  Vandoveer  vs.  McKane,  25  Abbot's  N.  C.  105; 
McHusfh  will  case  in  Wisconsin,  72  N.  W.  Repoi^ter  (531;  Iowa, 
Moran  vs.  Moran,  7.3  N.  W.  Rep.  017;  Schoulor,  Petitioner,  134 
Mass.  426;  Rhymer's  Appeal,  93  Pa.  St.  142;  Seibert's  Appeal,  18  W. 
N.  Cas.  276. 


BEQUESTS   FOR    MASSES.  159 

of  Hoeffer  vs.  Clogan.  Andrew  Clogfan  died  and  by 
will  left  $1,000  and  some  real  estate  to  the  "Holy 
Family  church"  in  Chicao^o,  the  real  estate  to  be  sold 
by  the  church  and  the  total  sum  to  be  expended  in 
masses  for  the  repose  of  his,  the  testator's,  soul  and 
the  souls  of  his  mother-in-law  and  brother-in-law. 
The  Holy  Family  church  is  not  incorporated  and 
therefore  no  such  entity  is  known  in  law.  The  be- 
quest would  therefore  fail  unless  it  could  be  sus- 
tained by  the  doctrine  of  charitable  uses.  It  was  so 
sustained,  the  court  holding-  the  bequest  to  be  a  g\it 
to  a  charitable  use  under  the  law  of  Eng-land  adopted 
in  Illinois.  "The  mass,"  says  the  court,  "is  a  repe- 
tition of  the  sacrifice  on  the  cross,  Christ  offering* 
himself  ag^ain  throug^h  the  hands  of  the  priest  and 
asking*  pardon  for  sinners  as  he  did  on  the  cross. 
It  is  reg"arded  as  a  benefit  not  only  for  the  partic- 
ular soul  in  whose  behalf  it  may  be  said,  but  to  all 
others  who  may  participate  in  the  ceremony  or  attend 
it.  Hence  it  may  be  upheld  as  a  public  charity. 
Such  is  the  doctrine  of  the  courts  of  Massachusetts 
and  Pennsylvania." 

It  may  also  'be  noted  that  the  supreme  court  of 
Michigan  by  mandamus  to  the  auditor  g*eneral,  Nov. 
8,  1889,  decided  that  a  minister  who  officiated  at  the 
funeral  of  an  unknown  person,  found  dead  and  buried 
at  the  expense  of  the  state,  was  entitled  to  a  fee  for 
his  services.  It  had  been  allowed  by  the  circuit 
court  to  the  coroner,  but  the  auditor  general  had  re- 
fused pa3"ment.  The  court  ordered  payment  and 
said  a  stranger  is  entitled  to  a  decent  burial,  which 
means  with  also  religious  service.  (Lechance  vs. 
Aud.  General,  77  Mich.  563.) 


CHAPTER  V. 

SACRAMENT   OF    PENANCE. 

158.  The  sacrament  of  penance  was  instituted  by 
Christ,  by  way  of  judg^nient  or  trial,  for  remitting* 
to  a  penitent  confessing  them,  all  his  sins  committed 
after  baptism,  which  remission  is  granted  through 
the  absolution  of  the  authorised  priest.  On  the  part 
of  the  penitent  contrition  and  confession  are  required 
and  also  satisfaction,  which  last  is  necessary  only 
for  the  integrity  of  the  sacrament;  on  the  part  of  the 
priest,  who  takes  the  place  of  Christ  by  his  commis- 
sion, absolution  is  required.  Thus  contrition,  con- 
fession and  absolution  are  the  essence  of  the  sacra- 
ment of  penance.  The  matter  and  form  of  this  sac- 
rament, as  well  as  the  dispositions  required  in  the 
penitent  and  the  method  of  confessing",  are  treated  in 
works  on  moral  theology.  This  work  is  concerned 
chiefly  with  the  approbation,  jurisdiction  and  con- 
duct of  its  minister  in  certain  circumstances. 

159.  Every  priest  in  ordination  receives  the  in- 
herent or  essential  power  to  forgive  sins  in  the  sac- 
rament of  penance;  but  the  use  of  this  power,  except 
for  the  benefit  of  a  dying  person,  is  restricted  by  the 
church  and  depends  on  its  jurisdiction  or  commission. 
Approbation  is  required  from  the  ordinary  of  the 
place  where  confessions  are  heard.  It  is  defined: 
"A  judgment  of  the  ordinary  concerning  the  compe- 

160 


SACRAMENT    O^    PENANCE.  161 

tency  of  a  priest  to  hear  confessions."  Without  it 
no  priest,  secular  or  reg^ular,  except  in  case  of  death, 
can  validly  or  licit! y  hear  confessions.  An  examina- 
tion is  not  strictly  necessary  before  a  bishop  can 
^ive  approbation,  for  his  jud^^ment  may  be  otherwise 
well  founded.  So  necessary  is  this  approbation  by 
the  ordinary  that  if  he  should  unjustly  refuse  it,  or 
withdraw  or  limit  it,  the  priest,  even  if  a  reli^^^ious, 
could  not  validly  hear  confessions.  Such  a  with- 
drawal or  limiting"  of  approbation  on  the  part  of  the 
bishop  is  valid,  thoug'h  for  its  licity  there  must  be 
good  cause. 

160.  Approbation  is  something  distinct  from  juris- 
diction; for  to  approve  is  to  declare  a  priest  worthy 
or  competent  to  receive  subjects  on  whom  to  exercise 
the  power  of  the  keys;  but  to  confer  jurisdiction  is 
actually  to  assign  subjects  to  such  priest.  Appro- 
bation may  be  given  only  after  examination  if  the 
bishop  judg'es  it  necessary;  and  he  may  call  to  a  sec- 
ond examination  confessors  whom  he  has  approved. 
Even  parish  priests,  who  in  their  appointment  acquire 
ordinary  jurisdiction  in  the  internal  forum  over  their 
parishioners,  may  be  cited  to  an  examination  if  a  well 
founded  suspicion  should  arise  of  their  incompetence. 
However,  unless  such  suspicion  arise,  the  bishop 
who  approved  them  for  the  appointment  to  the  parish 
cannot  re-examine  them,  although  his  successor  may 
do  so.     (jRec.  Dccis.  Rotcc  ^57,  2^8^  p.  2.) 

161.  As  to  reg'ulars,  properly  so  called,  who  make 
solemn  vows,  their  prelates  have  ordinary  jurisdic- 
tion over  the  members  of  the  order,  and  through 
them  the  other  members  acquire  delegated  jurisdic- 
tion.    But  in  reg'ard  to  the  confessions  of  seculars, 

22 


162  IvEiGAL    FORMUIvARY. 

these  reg'ulars  receive  jurisdiction  from  the  Roman 
Pontiff;  but  for  its  valid  exercise  the  approbation  of 
the  ordinary  of  the  place  is  required. 

From  this  approbation  their  power  is  determined 
as  to  place,  time,  persons  and  also  cases.  [Const. 
Apost.  Ministerii^  Inn.  XII:  Ben.  XIII  ide7n; 
Greg-ory  XIII  Const.  Cum  in  Sacra.)  The  common 
practice  at  present  is  for  bishops  to  grant  reg"ulars 
approval  only  for  a  limited  time  or  while  stationed 
in  the  diocese,  so  that  if  they  should  lose  their  dom- 
icile in  the  diocese  and  ag*ain  return,  they  would  be 
obliged  to  obtain  a  renewal  of  approbation. 

162.  It  is  noteworthy  that,  except  in  the  case  of 
exempt  regulars,  the  common  practice  to-day  is  for 
bishops  to  give  priests  jurisdiction  together  with  ap- 
probation. With  us  this  jurisdiction  extends  over 
the  diocese  except  it  be  specially  limited.  It  is  usu- 
ally given  for  a  limited  time.  But  since  parish 
priests  have  implicit  approval  and  acquire  ordinary 
jurisdiction  for  the  confessions  of  their  parishioners 
by  their  appointment  to  the  parish,  this  jurisdiction 
is  not  withdraw^n  except  by  a  legal  suspension  or  re- 
moval from  the  parish.  The  so-called  "revocation 
of  faculties,"  whatever  it  means,  cannot  cover  such 
a  case.  Moreover,  using  such  an  uncanonical  term 
is  at  best  a  dangerous  experiment,  and  experience 
has  shown  that  it  is  hardly  sustainable  even  in  the 
case  of  movable  rectors. 

163.  In  the  general  faculty  for  hearing  confessions 
is  not  included  that  for  the  confession  of  nuns.  A 
special  approbation  is  required  for  this.  Regulars 
should  not  be  confessors  for  nuns  except  where  sec- 
ulars   cannot  be  had.      [Monacclli  t.    /,   /.   g,  f.  j.) 


VISITING    IN    CONVENTS.  163 

The  ordinary  confessor  for  nuns  is  approved  for 
three  years  and  should  then  be  changfed.  With  the 
consent  of  the  Holy  See  a  second  term  of  three  years 
may  be  allowed;  which  consent  is  usually  oriven  only 
if  by  secret  vote  two  thirds  of  the  nuns  ca-pitiilaritcr 
ag-ree  in  requesting-  a  second  term.  For  the  third 
successive  term  the  consent  of  all  the  nuns  of  the 
convent  without  exception  is  required.  A  secular  ex- 
traordinary confessor  must  be  deputed  by  the  bis^hop 
(or  approved  on  presentation  by  the  prelate  of  a  reg*- 
ular  order  to  whom  the  nuns  are  subject),  and  at 
least  two  or  three  times  a  3^ear  all  the  nuns  of  the 
convent  must  confess  to  him  or  present  themselves  in 
the  confessional  even  though  not  desiring-  to  confess. 
The  S.  Cong,  of  Bishops  and  Regulars  on  Sept.  27, 
1861,  ordered  this  also  for  congreg"ations  of  sisters 
who  take  only  simple  vows.  On  April  22,  1872,  the 
same  Sacred  Congregation  decided  that,  where  in 
parishes,  especially  in  the  country,  there  are  three 
or  four  sisters  belonging  to  congregations  or  insti- 
tutes which  haVe  only  simple  vows,  but  living  in  the 
parish  in  order  to  teach  school  and  frequenting  the 
parish  church  for  mass  and  the  sacraments,  they  can 
make  their  confession  outside  their  own  house  to  any 
confessor  approved  by  the  ordinary.  While  the  ex- 
traordinary confessor  is  hearing  confessions,  the 
ordinary  confessor  is  prohibited  from  hearing"  the 
confession  of  any  one  in  the  convent  under  punish- 
ment to  be  arbitrarih"  imposed  by  the  prelate  to 
whom  the  convent  is  subject.  Likewise  access  to 
the  convent  is  prohibited  to  the  extraordinary  con- 
fessor, after  he  has  completed  hearing  confessions. 
While  these  two  regulations  apply   particularlv  to 


164  LEGAL    FORMULARY. 

nuns  who  take  solemn  vows,  the  spirit  of  the  law  in- 
sists that  neither  ordinary  nor  extraordinary  con- 
fessors should  visit  in  convetits.  The  contrary 
practice  is  a  serious  abuse,  even  if  the  sisters  are 
teachers  in  the  parish  schools,  and  it  should  be  elimi- 
nated as  the  occasion  of  scandal. 

164.  Jurisdictionis  potestatem  jure  suo  limitibus 
coercere  possunt  Pontiiices  Maximi  in  ecclesia  uni- 
versali,  et  in  sua  quisque  dioecesi  episcopi  per  casuum 
reservationem,  qua  invalidaprorsus  redditurabsolutio 
extra  mortis  articulum.  Reservationes  factae  a 
Romano  Pontifice  sunt  perpetuse;  factae  ab  ordinario, 
nisi  statutae  sint  in  synodo  dioecesana,  cessant  resoluto 
jure  reservantis.  {Cf.  D^ Annihale^  -part.  Ill^  -p.  ^44.) 
Extra  mortis  articulum,  tantum  possunt  directe  a 
reservatis  absolvere  ipse  reservans,  reservantis  supe- 
rior et  ab  alterutro  deleg'atus.  Ceterum,  in  mortis 
articulo  nulla  est  reservatio  atque  ideo  omnes  sacer- 
dotes  quoslibet  poenitentes  a  quibusvis  censuris  atque 
peccatis  absolvere  possunt.  Qui  tamen  a  censuris 
Romano  Pontifici  speciali  rnodo  reservatis  absolvit 
poenitentem,  eum  moiieat  de  oblig^atione,  si  conval- 
uerit,  se  sistendi  eidem  summo  Pontifici  eidemque 
plane  parendi;  recidet  enim  in  censuras  easdem  si 
praestare  hasc  reniiat.  Verumtamen  h^ec  oblig"atio 
non  afficit  eos  qui  peccata  reservata  vel  alias  censuras 
habent  quam  quae  speciali  modo  R.  Pontifici  reservata 
sunt. 

165.  Nullus  confessarius  absolvere  potest  compli- 
cem  suum,  marem  vel  feminam,  in  peccato  turpi;  ita 
ut  absolutio,  si  qua  detur  extra  mortis  articulum,  et 
invalida  sit  et  illicita.  Qui  autem  absolvere  praesumit, 
excommunicationem    latae    sententiae    Papae    speciali 


RESERVED   CASES.  165 

modo  reservatam  incurrit.  In  mortis  articulo  vel 
periculo  et  valide  et  licite  absolvet  complicem  si  non 
possit  advocari  alius  sacerdos  qui  confessionem 
audiat;  vel  si  potest  quidem  advocari,  sed  non  absque 
scandalo.  Si  vero  adsit  sacerdos  alter  qui  confes- 
sionem excipere  queat  etiamsi  non  sit  approbatus, 
tunc  sacerdos  complex  absolvet  quidem  valide,  sed 
illicite  incidetque  in  excommunicationem.  Hanc  cen- 
suram  incurrit  etiam  qui  simulat  absolvisse.  (S.  O. 
20  maji,  i86y.) 

166.  Casus  iste  reservatusid  peculiare  habet,  quod 
semper  in  posterum  excipendus  est  etiam^  in  amplis- 
simis  facultatibus  quse  episcopis  et  missionariis  con- 
ceduntur.  Idem  dicendum  de  peccato  quo  quis  cal- 
umniose  denunciavit  sacerdotem  aliquem  de  crimine 
soUicitationis.  Ambo  casus  specialissimo  modo  Papa^, 
reservati  sunt.  {S.  O.  2j  JinH\  1866;  4.  Afr.  iSyi.) 
Per  S.  Congreofationem  de  Propaofanda  Fide  die  24 
Jan.  anno  1868,  "Sanctitas  sua  sing-ulis  archiepis- 
copis,  episcopis  ac  vicariis  apostolicis  Statuum  Fced- 
eratorum  America}  Septentrionalis  facultatem 
benig-ne  concessit,  qua  illorum  quisque  pro  quindecem 
casibus  in  propria  dioecesi  vel  vicariatu  uti  possint, 
sive  per  suum  vicarium  generalem,  sive  per  idoneos 
confessarios,  a  se  vel  a  dicto  vicario  ad  hoc  specialiter 
et  cum  expressa  mentione  Apostolicaj  auctoritatis 
deputandos,  absolvendi  nimirum  a  censuris  et  poenis 
ecclesiasticis  sacerdotes,  qui  personam  complicis  in 
peccato  turpi  confessiones  excipere  eamque  absolvere 
ausi  fuerint,  et  cum  iisdem  super  irregularitate  a 
violatione  dictarum  censurarum  quomodocunque 
contracta  misericorditer  dispensandi;  sub  ea  tamen 
lege,  ut  sic  absoluti  et  dispensati  infra  duos  menses, 


166  IvEGAL   E'ORMULARY. 

vel  aliud  congruum  tempus  a  dispensante  decernen- 
dum,  directe  vel  per  medium  proprii  coiifessarii,  sup- 
pressis  nominibus,  ad  S.  C.  de  P.  Fide  recurrere, 
eique  explicare,  quot  persotias  complices  in  re  turpi, 
et  quoties  a  peccato  complicitatis  absolverint,  et 
mandatis  ejusdem  S.  C.  desuper  ferendis  obedire 
teneantur;  sub  reincidentia.  in  easdem  censuras  et 
poenas,  si  contravenerint;  injuncta  singulis  pro  modo 
culparum  cong-rua  poenitentia  salutari,  quodque  ab 
audiendis  personae  complicis  confessionibus  omnino 
abstineant,  aliisque  injunctis  de  jure  injung^endis." 
(Cy.  Co7ic.  Plen.  Bait.  II,  -p.  cxlviii.)  Si  facultas 
ha^c  sing-ulis  episcopis  peteutibus  pro  determinato 
numero  renovata  fuerit,  dies  alterius  concessionis 
inseri  debet  in  sub-delegatione. 

167.  Formula  lieic  datur  litterarum  quae  post  im- 
pertitam  absolutionem  in  casu  superiori  essent  a  con- 
fessario  scribendae  (mutatis  mutandis)  ad  Em^^^ii^ 
Praefectum  S.  Cong*,  de  Prop.  Fide  vel  ad  Sacram 
Poenitentiariam. 

"Eminentissime  Princeps: 

Ego  infrascriptus  sacerdos  ex  facultate  Apostolica 
mihi  a  RevE^    Episcopo  N.     N.   communicata,    (qui 

die mensis   A.   D. a  Sanctissimo  DD. 

Papa facultatem  obtinuit  cum   potestate  sub- 

deleg'andi,)  absolvi  Titium  sacerdotemab  excommuni- 
catione  lata  contra  absolventes  complicem  in  peccato 
turpi  et  cum  eodem  super  irreg"ularitate  a  violatione 
dictae  censurae  contracta  dispensavi.  Nunc  vero 
juxta  praescriptionem  (ejusdem  indulti  et)  decreti  S. 
Cong-,  de  Prop.  Fide  die  24  Jan.  1868,  certiorem  facio 
Eminentiam  Vestram  quod  idem  sacerdos  Titius 
unum  tantum  (vel  duos  &c)  complicem  eumque  semel 
(vel  bis,  ter  &c)  absolverat.  Addam  eundem  Titium 
facti   sincere   poenituisse,    et   paratum    se    ostendere 


RESERVED    CASES.  167 

niandatis  omnibus  exequendis  qua3  Eminentia  Vestra 
vellit  ei  injuno'ere. 

Purpuram  deosculans  sunima  qua  par  est  rev- 
ereatia  et  devotione  permaneo. 

E^minentiae  Vestrae 

Submississmus 
N.  N.  Ecclesiae  N." 

Excell?^  Delegatus  Apostolicus  idem  quod   epis- 

copi    idultum     habet    et    confessarium    subdele^^are 

potest.     Recursus    ad    episcopum    sa^pe    omittendus 

est  tie   sio-illum  periclitetur.     Kx   respon.    S.    O.   23 

Junii,  1886,  necesse  est  "ut  tali  modo  absoluti   infra 

7)16)1867)1  a  recepta  absolutione  per  medium  confessarii 

ad  S.  Penitentiariam  recurrere  teneantur." 

168.  De  jure  ecclesia^  communi  omnes  sacerdotes 
sollicitautes  ad  peccandum  contra  sextum  decaloo^i 
praeceptum  cum  relatione  ad  confessionem,  denunci- 
andi  sunt  vel  ordinario  vel  Apostolical  Sedi;  et  p(ieni- 
tens  sollicitatus  absolvi  nequit  antequam  denunci- 
averit,  vel  si  statim  non  possit,  saltern  quam  primum 
se  denunciaturum  pollicitus  fuerit.  Denunciatio 
excipi  poterit  etiam  a  vicario  apostolico.  {S.  O. 
di6  2o  JiDiii^  iS8^.) 

Quoad  sollicitationem  notandum  est,  quod  ea 
debet  esse  facta  a  sacerdote  tamquam  a  confessario; 
hinc  vel  in  actu  confessionis  sive  immediate  ante 
sive  immediate  post,  vel  extra  confessionem  occasione 
vel  praetextu  vel  simulatione  confessionis.  Notan- 
dum etiam,  quod  si  nullo  modo  omnibus  adhibitis 
hortationibus,  poenitens  ad  denunciandum  induci 
queat,  confessarius  opus  caritatis  faciet  si,  suppresso 
ejus  nomine,  ad  S.  Poenitentiariam  casum  deferat. 

169.  Haud  facile  adhibenda  est  fides  mulieribus 
sacerdotes    de    sollicitatione    accusantibus.     Etenim 


168  LEGAL    FORMULARY. 

non  semel  visae  sunt  mulierculse,  quae  ex  invidia,  odio, 
Zelotypia,  aliove  fine  perverso  clericos  prorsus  inno- 
centes  atrociter  calumniate  sunt.  Ig"itur  pcenitenti 
sedulo  aperiat  confessarius  si  per  calumniam  sollici- 
tationis,  de  qua  ag^itur,  sacerdotem  accuset,  irreti- 
turum  seipsum  teterimo  scelere  ac  tali,  a  quo  nisi 
per  Suttimum  Pontificem,  extra  mortis  articulum, 
non  possit  absolvi.  Ista  reservatio  extenditur  etiam 
ad  mandantes,  consulentes,  suadentes  vel  quocumque 
modo  procurantes  falsam  accusationem. 

Pcjenae  sollicitationis  sunt  oravissimai,  sed  ferendae 
sententie;  nempe  suspensio  ab  ordine,  privatio  bene- 
ficiorum,  dig-nitatum  et  officiorum  quorumcumque  et 
perpetua  inhabilitas  ad  ilia;  addenda  est  perpetua 
inhabilitas  ad  misse  celebrationem.  Confessarius 
solicitans  potest  absolvi  ab  alio  quocunque  con- 
fessario. 

ADDUNTUR    NOVISSIM^  INSTRUCTION'S  DE  RATIONE 
PROCEDENDI   IN   CAUSIS   SOLLICITATIONIS. 

I.  Instructionis  S.  Romanae  et  Universalis  Inquis- 
itionis  circa  observantiam  Apostolical  Constitutionis 
"Sacramentum  Poenitentiae"  no.  10  praecipitur  ut 
anteqiimn  contra  denitnciatiun  -procedatiir,  f>ersf>eC' 
tiim  cxploratiunqice  judici  esse  debeat,  quod  midieres 
vel  viri  deminciantes  siiit  boiii  nominis,  neqiic  ad 
accusandmn  vel  inimicitia  vel  alio  huniano  affectu 
addiicti  fiierint. 

II.  Praeceptum  hujusmodi,  uti  omnia  quae  ad  liujus 
Supremi  Tribunalis  procedendi  rationem  spectant, 
strictissimi  juris  censendum  est,  ita  ut,  eo  neg*lecto, 
ad  ulteriora  procedi  nequeat. 

III.  Nee     sufficit    ut    id    utcumque,     sed    omnino 


PROCESS    DB   SOLrjCITATIONE.  169 

iiecesse  est  ut  certa  iudiciali  forma  iudici  innotescat; 
quod  propria  dlctione:  'Uiiligoitias  circa  dcnuncia- 
tuvi  eiusquc  deiiiuicicmtcs  pcragere^^  sig"aificarl  in 
foro  S.  Officii  usus  obtinuit. 

IV.  lamvero  cum  non  semper  nee  ab  omnibus  vel 
tantum  post  long-um  tempus,  cum  nempe  testimoni- 
orum  receptio  difticilis  et  quandoque  impossibilis  est, 
Supremum  hoc  Tribunal  id  servari  perspexerit,  hanc 
ad  rem  Instructionem,  pro  Rmorum  Ordiuariorum 
norma,  edendam  mandavit. 

V.  Ordinarius  ig'itur  toties  quoties  aliquam  de  in- 
fando  sollicitationis  crimine  denunciationem  accep- 
erit,  illico  ad  idilig-entias  peraofendas  procedet.  Ad 
quem  finem  vel  per  se  vel  per  Sacerdotem  a  se  spec- 
ialiter  deleo'atum  advocabit  (separatim  scilicet  et 
qua  decet  circumspectione)  duos  testes,  quantum  fieri 
poterit,  ex  coetu  ecclesiastico,'Utcumque  vero  omni 
exceptione  maiores,  qui  bene  noverint  tum  denuncia- 
tum  tum  omnes  et  sing^ulos  denunciantes,  eosque  sub 
sanctitate  iuramenti  de  veritate  dicenda  et  de  secreto 
S.  Officii  servando,  iudicialiter  iuterrogabit,  testi- 
monium scripto  referens,  iuxta  insequentem  formu- 
1am;  utriusque  vero  testimonii  atque  simul  respecti- 
vae  denunciationis  autlienticum  exemplum  directe 
tutaque  via  ad  banc  Supremam  Cong-reg^ationem 
quamprimum  transmittet. 

VI.  Dictum  est:     "vel  per  se  vel  per  Sacerdotem 

a    se    specialiter  deleo'atum;"    nihil    enim     prohibet 

quoniinus,    rationabili   ex   causa,   pio  alicui  docto  ac 

prudenti  Sacerdoti  id  muneris  Ordinarius  demandare 

valeat;  spcciali  tamen  ei  in  singulis  casibus  delega- 

tione  imperitita,   eique  antea  delato  iureiurando  de 
23 


170  IvEGAIv   FORMULARY. 

munere  fideliter   obeundo   et   de   secreto   S.    Officii 
servando. 

VII.  Quod  si  inveniri  nequeant  duo  tantum  testes 
qui  noverint  una  simul  denunciatum  et  onines  et 
sin^ulos  denunciautes,  plures  vocari  debent.  Tot 
nempe  hoc  in  casu  testes,  ut  supra  vocandi  erunt, 
quot  oportebit  ut  duplex  quoad  denunciatum  et 
unumquemque  denunciantem  habeatur  testimonium. 

VIII.  Quoties  autem  iuramentum  de  secreto  ser- 
vando, et,  pro  diversis  casibus,  de  veritate  dicenda 
vel  de  munere  fideliter  obeundo  deferendum  sit, 
iuramentum  ipsum  semper  et  ab  omnibus,  etiam 
Sacerdotibus,  tactis  Ss.  Dei  Evarigeliis  ct  no7i  aliter, 
praestandum  erit.  In  Ordinarii  vero  potestate  erit, 
siquidem  pro  rerum,  locorum  aut  personarum  adiunc- 
tis  necessarium  vel  expediens  iudicaverit,  excommun- 
icationem  ipso  facto  incurrendam  et  Rom.  Pont, 
speciali  modo  reservatam  violatoribus  comminari. 

IX.  Sequitur  interrog"ationis  formula: 

Die mense —  anno 

Vocatus  personaliter  comparuit  coram  me  infras- 
scripto  Episcopo--(?^o/^/^^r  iiomcn  dioecesis.  Dele- 
g-atus  aiitenv dicat :  coram  me  infrascripto  a  r.  p.  d. 
Episcopo--ad  hunc  actum  tantum  specialiter  dele- 
^ato)  sistente  in  —  hiotctur  locus  iibi  ncgotiiun 
geritur. ) 

N.  N.  (no77ie)iy  cogoiomen  ct  qualitates  testis  con- 
veiiti)  qui,  delato  ei  iuramento  veritatis  dicendag, 
quod  praestitit  tactis  Ss.  Dei  Evang-eliis,  fuit  per  me 

1.  Interrog'atus:  Utrum  noverit  Sacerdotem  N. 
N.?  {7iome7i,  cog7i077ie7i  et  qualitates  de7iu7iciati,) 

^Q^-^ondiXi:  -  -  {exsc7'ibatur  lirigua  qua  ulitu7'  testis, 
eius  7'es^07tsio.) 


PROCESS    DE    SOLLICITATIONE.  171 

2.  Interrog^atus:  Ouaenam  sit  hujusce  Sacerdotis 
vit^  ratio,  quiuam  mores,  qua^nam  penes  populum 
existimatio? 

Respondit: 

3.  Interrog"atus:  Utrum  noverit  viros  vel,  ut  plur- 
imum,  mulieres  NN.  NN.?  {iiomcu,  cognomen  ct 
qiialitatcs  iminscniusqiic  dcnunciaiitis. ) 

Respondit: 

4.  Interroo-atus:  Quainam  sit  uniuscuiusque  eorum 
vita3  ratio,  quinam  mores,  (juaenam  penes  populum 
existimatio? 

Respondit: 

5.  Interrocfatus:  Utrum  eos  censeat  fide  dig-nos, 
vel  contra  mentiendi,  calumniandi  in  judicio  et  etiam 
periurandi  capaces  eos  existimet? 

Respondit: 

6.  Interrog-atus:  Utrum  sciat,  num  forte  inter  eos 
et  praefatum  Sacerdotem  ulla  unquam  extiterit  odii 
vel  inimicitiarum  causa? 

Respondit: 

Tunc,  delato  ei  juramento  de  secreto  S.  Officii  ser- 
vando,  quod  pra^stitit  ut  supra,  dimissus  fuit,  et 
antequam  discederet,  in  confirmationem  pra3missorum 
se  subscripsit. 

Siih script io  autographa  testis  vel  eiiis  sig'iuini  ^ 
criicis. 

Acta  sunt  ha^c  per  me  N.  N.  {nomoj,  cog^uomen  et 
qiialitates  Episcopi  vel  eAus  Deleg'ati  qui  testinio)iiu))i 
reccpit.) 

Datum  Roma3  die  6  Aug"usti  1897. 

L.  M.  Card.  Parocchi. 

170.  Formula  pro  concedenda  facultate  confes- 
siones  audiendi: 


172  LEGAIv    FORMULARY. 

"N—  Dei  &c  Episcopus  N — .  Dilecto  Nobis  in 
Christo  N.  N.  salutem  in  Domino.  Cuplentes  Nos 
in  quantum  possumus  saluberrimi  sacramenti  poeni- 
tenti^  administrationem  in  nostra  dioecesi,  ea  qua 
majori  potest  doctrinae  sufficientia  ac  morum  integ*- 
ritate  exerceri;  cum  te  hisce  dotibus  ornatum  non 
immerito  censeamus,  et  per  Nos  ac  nostros  exam- 
inatores  examinatum,  satis  capacem  idoneumque 
repererimus;  idcirco  ad  tantum  administrandum 
sacramentum  tenore  praesentium  te  approbamus, 
omniumque  poenitentium  in  nostra  dioecesi  confes- 
siones  audiendi,  eosque  sacramentaliter  absolvendi, 
praiterquam  a  casibus  Sanctai  Sedi  ac  Nobis  reser- 
vatis, .  (excepto  mortis  articulo)  opportunam  et  ad 
—  annos  (vel  alias)  duraturam  concedimus  facul- 
tatem;  excipimus  tamen  sanctimoniaies.  Praecipi- 
musquoque,  ut  absque  parochorum  licentia  aliorumve 
superiorum,  in  quorum  ecclesiis  volueris  confessiones 
excipere,  id  efficere  non  debeas.  Tibique  insuper 
injung-imus  ut  quotiescunque  a^orotantium  confes- 
siones audieris,  quamprimum  ea  de  re  eorum  paro- 
clium  certiorem  reddas  sub  poena  privationis  facul- 
tatis  hoc  administrandi  sacramentum  ipso  facto 
incurrenda;  sub  eademque  pcjena  mulierum  non  in- 
firmarum  confessiones  audire  extra  sedem  confession- 
alem  et  non  interposita  crate  tibi  omnino  vetamus. 
Denique  te  in  Domino  enixe  hortamur  ut  ea  qua  decet 
modestia  ac  puritate  conscientia^  ad  tale  sacramentum 
ministrandum  accedas  et  ea  qua?  per  sacros  canones 
et  constitutiones  SS.  Pontificum  atque  per  nostras 
constitutiones  synodales,  praesertim  circa  casus  res- 
ervatos,  vel  per  Sacral  Pctniitentiaria}  de  Urbe  litteras 
ordinata  et  commissa  sunt  et  erunt  attente  leo'as, 
perpendas  et  fideliter  exequaris.  In  quorum  &c. 
Datum  &c. 

[iv.  s.]  N.  Episcopus  N. 

N.  N.  Cancell.  Episcopalis." 

171.   Formula  litterarum  testimonialium  idoneita- 


APPROVAL  FOR  REGULARS.         173 

tis  ad   confessiones   audiendas    pro    reg-ularibus   ex- 
emptis: 

"Eg"o  infrascriptus  Ordinis  N —  magfister,  sacraj 
theoloo-iaj  professor  ac  prior  (provincialis)  provincial 
N —  (mutatis  mutandis)  eleg^i  Patrem  N.  sacerdotem 
in  nostra  religfione  professum  ad  audiendas  confes- 
siones sacramentales,  quern  sic  electum  tanquam 
sufficientem,  idoneum,  vita  probatum,  discretum, 
modestuni  atque  peritum,  et  ab  examinatoribus 
ordinis  ad  id  approbatum,  x^raisento  111^^'  et  Rev5^ 
D.  Episcopo  N.  quern  humiliter  peto  ut  ad  tarn  salu- 
bre  ministerium  et  officium  exequendum  ilium  et  ipse 
approbare  di«fnetur;  ad  hoc  ut  in  sua  civitate  et 
dirL'cesi  confessiones  subditorum  confiteri  sibi  volen- 
tium  audire,  atque  eisdem  pcenitentias  salutares 
imponere  et  absolutionis  beneficium  impendere  libere 
valeat.  In  quorum  omnium  testimonium  prasentes 
dabam.     Locus  et  dies  &c. 

[l.  s.]  N.  N.  Provincialis. 

N.  N.  Secretarius." 

172.  Formula  approbationis  confessarii  reg"ularis 
exempt! : 

"N.  Episcopus  N.  Dilecto  Nobis  in  Christo  P.  N. 
ordinis  N —  presbytero  salutem  et  benedictionem: 
Cum  multa  Christi  messis  Nos  coo*at  undequacjuc  ut 
ad  auxilium  nostrum  operarios  advocemus,  teque 
pium  et  doctum  examine  noverimus  aptumque  ut  sub 
nostri  reii'iminis  mag"isterio  procuranda^  iidelium 
saluti  inservias;  administrando  poenitentia^  Sac- 
ramento te  admovere  statuimus,  prout  per  pra?- 
sentes  ad  sex  menses  (vel  alias)  tantum  valituras  ad 
confessiones  Christi  iidelium  excipiendas  in  hac  nos- 
tra dioecesi  approbamus;  ea  tanien  couditione  ut  a 
casibus  Nobis  et  sanctae  Sedi  reservatis  non  absolvas. 
In  quorum  &c.     Datum  &c. 

[l.  s.]  N.  Episcopus  N. 

N.  N.  Cancellarius  Episcopali; 


is. 


174  LEGAL    FORMULARY. 

173.   Formula    deputationis   confessarii     ordinarii 
pro  monialibus: 

"N —  Episcopus  N— .  Dilecto  in  Christo  Rev.  N. 
N.  presbytero  sseculari,  salutem  et  benedictionem: 
Tibi,  Reverende  Domine,  per  examuiatores  nostros 
idoiieo  reperto  et  per  Nos  approbate  ut  in  ecclesia  et 
monasterio  Santae  N —  confessiones  sacramentales 
monialium  audire,  et  ssecularium  etiani  muiierum, 
si  quae  in  eodem  monasterio  erunt,  easque  absolvere 
valeas,  praeterquam  a  casibus  et  censuris  Sedi  Apos- 
tolicae  et  Nobis  reservatis,  licentiam  et  facultatem 
concedimus  et  impartimur;  tibique  confessario  ordi- 
nario  a  Nobis  deputato  omnes  moniales  confiteri 
teneantur.  In  clausuram  monasterii  non  ing-redieris, 
nisi,  superpelliceo  et  stola  indutus  ut  tantummodo 
sacramenta  poenitentiae,  eucharistiae  et  extremae 
unctionisinfirmisadministres,  in  quibusutique  casibus 
semper  hoc  tuo  munere  modestia  perfung^as,  sociatus 
a  duabus  ex  senioribus  monialibus,  quae  cum  confes- 
siones iniirmarum  audies,  janua  cellae  aperta,  te 
etiam  videre  possint,  non  auteni  audire.  Neg"otiis 
monasterii  aut  monialium  quibuscunque  non  te  im- 
misceas,  neque  ad  crates  seu  rotas  colloquaris  nisi 
de  his  tantum,  quai  ecclesia  cultum  et  divinorum 
officiorum  celebrationem  respiciunt.  Te  quoque  in 
Domino  monemus,  ut  cures  promovere  qu^  ad 
reg"ulae  observantiam  conducant;  pravos  autem 
abusus  si  qui  sint,  evellere,  sed  relig"iosam  vitam 
fovere  et  enutrire  coneris.  Cum  vero  confessor 
extraordinarius  per  Nos  mittitur,  long-e  a  monasterio 
abscedas,  donee  ille  discesserit.  Praesentibus  cum 
solita  mercede  (a  monasterio  solvenda)  ad  triennium 
valituris.  In  quorum  &c.  Datum  &c. 
[l.  s.]  N.  Episcopus  N. 

N.  N.  Cancellarius  Kpiscopalis." 

175.   Formula   deputationis   confessarii   extraordi- 
narii  pro  monialibus: 


APPOINTMENT   OF    CONFESSORS.  175 

"N.—  Episcopus  N.—  Dilecto  in  Christo  N.  N. 
presbytero  saeculari,  salutem  et  benedictionem: 
Tibi,  Reverende  Domine,  confessario  in  hac  nostra 
dioecesi  approbate,  cujus  vitam,  doctrinam  et  morum 
probitateni  jampridem  experti  sunius,  obtemperan- 
tes  S.  Concilii  Trid.  decreto,  necnon  et  S.  Cong-re- 
g^ationis  E)pp.  et  RR.  instructioni  circa  confessarium 
extraordiuariuni  pluries  in  anno  monialibus  Nobis 
subjectis  providendum,  ut  tanquam  talis  confessarius 
sanctimonialium  monasterii  N.  in  civitate  N.  sacra- 
mentales  confessionesexcipere  et  a  peccatis  absolvere 
possis,  et  eaedem  pcjenitentiae  medicina  indig-entes 
liberius  malis  suis  mederi  valeant,  etiam  cum  facul- 
tate  ab  omnibus  casibus  et  censuris  Nobis  reservatis 
absolvendilicentiam  concedimuset  facultatem  oppor- 
tunam  impartimur,  per  trinos  dies  unoquoque  cir- 
citer  anni  tempore  et  quater  tantum  duraturam. 
In  quorum  &c.     Datum  &c.  N.  Episcopus  N. 

[iv.  s.]  N.  N.  Cancellarius  Episcopalis." 

175.  At  times  it  is  necessary  for  confessors  to 
apply  to  the  Sacred  Penitentiary  in  Rome  for  facul- 
ties and  dispensations  for  the  internal  forum  or  for 
occult  cases.  Even  though  bishops  have  the  re- 
quired faculties  it  is  frequently  imprudent  or  dan- 
g"erous  to  apply  to  them.  Besides  the  faculties  in 
Form  1,  and  the  extraordinary  faculties  of  Forms 
C,  D,  and  E,  which  are  for  use  in  the  external  forum, 
the  Holy  See  throug-h  the  Cardinal  Penitentiary 
g"rants  some  bishops  on  application  extensive  facul- 
ties for  the  forum  internum.  A  copy  of  this  form  is 
g-iven  below  in  parag^raph  184. 

When,  however,  it  is  necessary  for  the  confessor 
to  apply  to  the  Cardinal  Penitentiary,  he  should  first 
make  dilig'ent  inquiry  into  the  case  to  determine  just 
what  faculty  is  required.     He  will  then  w^rite  either 


176  LEGAL    FORMULARY. 

in  Latin  or  in  the  national  lang"uao"e  an  exact  and 
concise  statement  of  the  case  without  mentioning" 
names,  even  thoug'h  there  be  no  dang^er  in  divulo'ing' 
them.  In  place  of  the  real  names  he  will  therefore 
use  N.  N.  or  fictitious  ones,  and  at  the  bottom  of  the 
letter  will  g-ive  the  address  to  which  the  reply  is  to 
be  sent.  The  envelope  enclosing-  the  letter  is  to  be 
addressed:  "To  His  Imminence,  the  Cardinal  Peni- 
tentiary, Rome,  Italy."  The  letter  may  be  sent  by 
ordinary  mail. 

176.  The  following  form  may  be  used  in  address- 
ing the  Cardinal  Penitentiary,  making  the  necessary 
changes  as  the  various  cases  require: 

"Eminentissime  Princeps: 

N.  N.  Sacerdos  contraxit  irregularitatem  ex  honii- 
cidio  occulto  ab  eo  ob  (talem)  causam,  clam  (tali) 
modo  patrato  (vel  procurato)  in  personam  hominis 
laici  (vel  clerici).  Ab  eo  tempore  non  abstinuit  ab 
exercitio  ordinum,  vitandi  scandali  causa  (vel  ne  se 
proderet).     Igitur  huniiliter  supplicat  pro   remedio. 

Vel:  N.  N.  contraxit  matrimonium  cum  muliere 
cujus  matrem  antea  carnaliter  cognoverat,  conscius 
(vel  nescius)  impedimenti,  quod  ocCultum  est;  quare 
cum  absque  scandalo  separari  non  possint  humillime 
supplicat  pro  remedio. 

Summa  qua  par  est  reverentia  et  devotione  pur- 
puram  deosculans,  permaneo, 

E^minentiae  Vestrae 

Submississimus 


>» 


Then  add  the  address  to  which  the  reply  is  to  be 
sent.  With  proper  changes  application  may  be 
made  to  the  bishop  if  he  has  the  required  facult}^  or 
to  the  Apostolic  Delegate. 

177.   The    reply  of  the  Cardinal    Penitentiary    is 


CLAUSES   IN    FACULTIES.  177 

mailed  to  the  address  j^iveu,  and  in  a  second  envelope 
encloses  the  necessary  faculty  or  dispensation  which 
is  to  be  executed  according-  to  the  directions  g-iven 
therein.  Formerly  the  execution  was  committed 
only  to  a  master  of  theolog-y  or  doctor  of  law,  but 
now  it  is  frequently  delegated  to  "any  confessor  ap- 
proved by  the  ordinary."  The  letter  of  the  Sacred 
Penitentiary  at  times  contains  various  clauses  whose 
meaning"  should  be  understood. 

^uatenus  si  ita  est,  means  that  the  confessor  must 
inquire  whether  the  statements  are  in  fact  true;  but 
for  this  he  need  only  depend  on  the  word  of  the 
penitent.  Absolvas  vel  dispenses  in  foro  con- 
scienticc,  means  that  the  absolution  or  dispensation 
is  of  no  value  in  the  public  or  external  forum,  fii 
ipso  actu  sacrarnenialis  confessionis  iantuvi,  requires 
for  the  validity  of  the  dispensation  an  actual  con- 
fession. An  frcBinissa  sive  exposita  sint  occulta, 
which  is  added  especially  when  matrimonial  dispen- 
sations are  granted.  If  this  clause  is  inserted  and 
the  crime,  irregularity  or  impediment  is  not  occult 
but  public,  then  the  faculty  cannot  be  used  validly; 
but  another  must  be  obtained  ^ro /oro  externa. 

When  the  faculty  is  given  for  deferring-  entry 
into  a  religious  order,  the  letter  contains  the  clause 
considcratis  qiice  sunt  consideranda,  which  means 
that  the  confessor  must  examine  whether  the  reason 
g-iven  is  true  and  the  necessity  for  delay  real,  and 
that  he  must  also  consider  the  danger  for  the  peni- 
tent if  delay  is  granted.  When  executing-  such  a 
letter  granting  delay  the  confessor  after  granting- 
sacramental  absolution  will  say:     "Insuper  auctori- 

tate  apostolica    specialiter  mihi    delegata  tibi  dela- 
2i 


178  LEGAL    FORMULARY. 

tioaem  adimplendi  votum  relig"ionis  quod  emisisti 
concedo.  In  nomine  Patris  et  Filii  et  Spiritus 
Sancti." 

When  executing"  a  letter  absolving-  from  trans- 
gression of  a  simple  vow  of  religion  or  of  chastity  in 
the  case  of  a  person  who  afterwards  married,  the 
confessor  will  say: 

"Deinde  auctoritate  apostolica  mihi  specialiter 
delegata,  te,  non  obstante  voto  castitatis  quod  emis- 
isti et  transgressus  fuisti,  in  dicto  matrimonio 
remanere  et  debitum  conjugale  reddere  posse  et  de- 
bere  declaro,  et  ut  idem  debitum  etiam  exigere  licite 
valeas  tecum  eadeni  auctoritate  apostolica  dispense. 
In  nomine  &c." 

178.  In  executing  letters  granting  dispensation 
from  the  secret  impediment  of  affinity  ex  copula 
illicit  a,  the  clause  occurs:  Sub  lata  occasione  -pec- 
candi  cum  dictcc  mulieris  {inatre,  -patre)  and  means 
that  if  the  occasion  is  voluntary,  it  must  be  removed 
before  the  dispensation  can  be  applied.  Injuncta 
ei  gravi  -pmnitentia  sahitari^  injitnctis  qucc  de  jure 
fueririt  injung'enda^  are  requirements  which  confes- 
sors understand.  The  clause  Ita  quod  hujusmodi 
absolutio  et  disperisatio  in  Joro  judiciali  nidlatenus 
suffrageiitur,  means  that  if  the  occult  impediment 
from  which  dispensation  is  granted  should  become 
public,  then  this  dispensation  will  not  avail  in  a  trial, 
but  a  new  one  must  be  obtained  for  the  external 
forum.  In  declaring  the  dispensation  the  confessor 
after  the  usual  absolution  from  censures  and  sins 
will  say  with  necessary  changes: 

"Insuper  auctoritate  apostolica  mihi  specialiter 
delegata  dispenso  tecum    super    impedimento  primi 


FORMS   FOR    ABSOLUTIONS.  179 

(secundi)  gradus  ex  copula  illicita  a  te  habita  cum 
sorore  mulieris  (fratre  viri)  cum  qua  (quo)  contra- 
here  intendis  (vel  attentasti)  proveniente,  ut  pra^fato 
impedimento  noii  obstante  matrimonium  cum  dicta 
persona  publice  contrahere  (vel  in  eo  remanere)  licite 
possis  et  valeas;  item  eadem  auctoritate  prolem 
quam  ex  matrimonio  susceperis  legitimam  fore  pro- 
nuncio  et  declaro.     In  nomine  &c.  " 

179.  In  letters  for  absolution  in  occult  cases  of  a 
person  who  has  imposed  violent  hands  on  a  cleric, 
a  clause  is  inserted,  Cziin  autcni  lator  de  f^rccmissis 
qiiCE  occulta  sunt  seii  qucr  ad  forum  ordinarii  niinhne 
-pervencrunt,  f^Iuriniuiii  doleat,  which  requires  that 
the  confessor  be  certain  of  the  sorrow  of  the  penitent 
and  of  the  secrecy  of  the  case;  otherwise  the  absolu- 
tion is  null.  Another  clause  is,  Ita  quod  si  f>rccmissa 
ad  forum  ordhiarii  devenire  contig'eriiit  ct  lator  scu- 
teuticc  scu  ordinationi  ordinarii  f>arcrc  co}itcmpscrit 
i)i  dictam  cxcommunicationcm  co  ipso  relabatur, 
which  means  that  if  the  crime  becomes  public  and 
he  refuses  the  penance  imposed  by  the  bishop  he  will 
relapse  into  excommunication.  The  form  for  ab- 
solution is: 

*'Dominus  noster  Jesus  Christus  te  absolvat  et 
ego  auctoritate  ipsius,  et  auctoritate  apostolica  mihi 
specialiter  delegata,  absolvo  te  in  primis  ab  excom- 
municationis  sententia  quam  incurristi  ob  manus 
violentas  injectas  in  clericum  N.  N.  et  ab  omni  alio 
vinculo  excommunicationis  et  interdicti  in  quantum 
possum  et  tu  indiges.  Deinde  ego  te  absolvo  a  pec- 
catis  tuis.     In  nomine,  &c." 

180.  The  form  for  absolving  and  dispensing  from 
irregularit}^   incurred  in  case  of  occult  homicide  is: 

"Dominus   noster   Jesus  Christus   te  absolvat,   et 


180  LEGAI^    FORMULARY. 

e^o  auctoritate  ipsius  et  auctoritate  apostolica  mihi 
specialiter  deleg"ata  absolve  te  in  prlmis  a  quibusvis 
sententlis,  censuris  et  poenis  ecclesiasticis;  quibus 
propter  ea  quas  confessus  es,  quomodolibet  innodatus 
existis,  et  pariter  eadem  auctoritate  absolve  te  a 
peccatis  tuis.  In  nomine  &c.  Insuper  eadem  auc- 
toritate apostolica  tecum  dispense  super  irreg-ulari- 
tate,  quam  ex  homicidio  contraxisti  ut  ilia  non 
obstante  clericali  charactere  insig'niri  ac  ordines 
etiam  sacros  et  presbyteratus  suscipere  et  postquam 
susceperis  in  illis  etiam  in  altaris  ministerio  minis- 
trare  licite  possis  et  valeas.  In  nomine,  &c."  (Si 
dispensandus  esset  sacerdos,  dicatur,)  "ut  ilia  non 
obstante  in  sacris  ordinibus  etiam  in  altaris  ministerio 
ministrare  licite  possis  et  valeas.     In  nomine  &c." 

181.  The  form  for  rehabilitating*  a  simonical  cleric 
is: 

"Dominus  noster  Jesus  Christus  te  absolvat  et  e^o 
auctoritate  apostolica  mihi  specialiter  deleg^ata, 
absolve  te  inprimis  a  quibusvis  sententiis,  censuris 
et  poenis  ecclesiasticis  quas  propter  simoniam 
incurristi,  et  eadem  auctoritate  absolve  te 
a  peccatis  tuis.  In  nomine  &c.  Et  insuper 
eadem  auctoritate  apostolica  tecum  dispense 
in  irreg'ularitate  quam  ex  simenia  et  ex  violatione 
pestea  contraxisti,  ut  ilia  non  obstante  in  tuis  ordini- 
bus etiam  in  altaris  ministerio  ministrare  ac  beneiicia 
si  qua;  tibi  alias  canonice  conferantur,  non  tamen 
beneficium  quod  simoniace  obtinuisti  et  dimisisti,  reci- 
pere  et  retinere  licite  possis  et  valeas.  In  nomine 
Patris  et  Filii  et  Spiritus  Sancti.     Amen." 

182.  When  a  priest  orives  absolution  by  deleg^ation 
from  the  S.  Penitentiary  or  from  the  bishop  in  a 
public  case  then  the  form  will  be  the  following"  after 
reciting-  the  prayers  prescribed  in  the  Roman  Ritual: 

"Et   e^o   auctoritate  mihi  cemmissa   absolve  te   a 


CERTIFICATE    OF    ABSOLUTION.  181 

vinculo    excommunicationis  majoris  quam    incurristi 

ob ,  et    restituo    te   unitati  S.   Matris    Ecclesia^, 

Sanctis    sacramentis    et    communioni    fidelium.       In 
nomine  &c. 

The  confessor  will  in  such  case  ofive  the  penitent, 
and  also  send  to  the  bishop  a  certificate  testifying-  to 
absolution  from  the  censure. 

"Kg-o  N.  N.  confessarius  deputatus  ab  I11II12  et 
Rev^  N.  Episcopo  N.  (vig-ore  litterarum  Sacrae 
Pcjenitentiaria^)  fidem  facio  qualiter  audivi  confes- 
sionem  sacramentalem  N.  N.  et  illi  absolutionem 
sacranientalem  impertitus  sum  in  forma  ecclesia^  con- 
sueta,  non  solum  a  peccatis,  verum   etiam  ab  excom- 

municatione  quam   ipse  N.  N.  incurrit  propter . 

In  quorum   fidem  testimoniales  has  litteras   dedi  ex 

loco  N.  die  —  mense  —  anno. 

[l.  s.]  Ego  N.  N.  Confessarius  Deputatus.*' 

183.  It  is  customary  for  the  tribunal  of  the  Peni- 
tentiary to  use  many  peculiar  abbreviations  in  its 
replies  which  are  always  sent  in  Latin.  That  such 
abbreviations  may  not  be  misunderstood,  and  neces- 
sary conditions  thereby  be  omitted,  an  explanation 
of  the  most  frequent  ones  is  inserted: 

archiepus archbishop 

air otherwise 

als otherwise 


absoluo absolution 

aplica apostolic 

autte authority 

appbatis -  approved 

cardlis cardinal 

canice canonically 

cen censures 

Xtus Christ 

confeone confession 

coione communion 


consciae conscience 

discreoni discretion 

dnus —    lord 

eccla3 church 

effus effect 

exit exists 

ecclis ecclesiastics 

epus bishop 

excdd  -  -excommunication 

f  r brother 

f  rum brother 

gnali  -    general 

humoi -of  this  kind 


182 


IvEGAL   FORMULARY. 


humilr    humbly 

infraptum  — undersio-ned 

irreg-ulte irreofularity 

igr therefore 

Ha —  license 

Itima leg"itimate 

Irae letters 

lite licitly 

mrittionium matrimony 

magfro master 

mitaone  —    -  - mercy 

mir mercy 

nultus not  at  all 

ordio ordinary 

ordinaoni ordination 

Pp pope 

pr father 

pontus pontificate 

ptus aforesaid 

ptur -  is  preferred 

pntium   present 

pbter priest 


poenia  penance 

poenaria  -    -penitentiary 

poe can 

pror -  -  procurator 

qtnus in  as  far  as 

qmlbt in  some  way 

qd which  or  what 

relari reo-ular 

relione reli<:^ion 

Roma Roman 

snta3  or  stae holy 

saluri salutary 

sentia sentence 

spealtr specially 

supplibus  supplications 

spualibus spiritual 

tn nevertheless 

tm only 

thia  or  theolia  -  theolosfy 

tli title 

venebli venerable 

vrag vour 


184.  The  quinquennial  faculties  g-ranted  by  the 
Cardinal  Penitentiary  to  some  bishops  and,  mutatis 
mutandis,  also  to  some  priests  are  the  following*: 

Raphael, 

Divina  Miseratione  Episcopus  Ostiensis  et  VelitGrnus,  S.  R.   E. 

Cardinalis   Monaco  La  Valetta,   Sacri  Colle<?ii   Decanus,   Sacro- 

sanctae  Patriarchalis  Archilmsilicae  Lateranensis  Ar(^liiprosbvt  or. 

SS.  DD.  Nostri  Papae  ot  S.  Sedis  Apostolicne 

Major  Pooiiitentiarius. 

Vobis  Venerabili  in  Christo  Patri  N—  N—  ,  Episciopo  N  — ,  in- 
frasoriptas  commnnicamns  facultates  ad  quinquennium  duraturas, 
quibiis,  non  obstante  Constitutione  Apo.stolicjic  Sedis  pro  loro 
conscientiae  per  vos  sive  per  Vestrum  Vicarium  in  spiritualibus 
generalem,  dummodo  in  Sacro  presbytcratus  ordinc  sit  constitutus, 
etiam  extra  sacramentalem  contessionem  pro  j?rep:e  Vobis  com- 
misso,  et  intra  fines  Vestrae  dioecesis  tantum  atque  de  speciali  in 


SPECIAL   FACULTIES.  183 

unoqiioque  casu  exprimenda  Scdis  Apostolicae  auctoritate  Vobis 
dele^ata,  uti  valeatis;  qiiasque  caiioiiico  poeiiitentiario,  iiecnon 
vicariis  foraueis  pro  foro  pariter  coiiscieiitiae  ac  in  actu  sacra- 
nicutalis  coiifcssioiiis  dumtaxat,  etiam  habitiialitcr,  si  Vobis 
placuorit,  aliis  vero  confessariis,  ouni  ad  Vos  sive  ad  praediotum 
Vicarium  goueralem  in  casibus  particularibus  poenitentium  re- 
cursiim  tiabuerint,  pro  oxposito  casu  impertiri  possitis,  nisi  ob 
pecnliares  causas  alicjuibus  confessariis  a  Vobis  specialiter  sub 
delegandis,  per  tempus  arbitrio  Vcstro  statuendum,  illas  commu 
nicare  judicabitis. 

I.  Al^solvendi  ab  excommunicatione  Romano  Pontifici  sim 
pliciter  reservata  ob  maiuis  violentas  injectas  sive  in  clericos  sive 
in  Keftulares,  dummodo  non  fuerit  secuta  mors,  vel  nuitilatio,  seu 
lethale  vulnus,  aut  ossium  fractio;  et  dummodo  casus  ad  forum 
Ordinarii  deducti  non  fuerint;  injunctis  de  jure  in.junjg:endis,  et 
praesertim  ut  parti  laesae  competenter  satistiat. 

II.  Absolveudi  a  censuris  contra  duellantes  statutis,  in  casibus 
dumtaxat  ad  forum  Ordinarii  non  deductis;  injuncta  gravi  poeui- 
tentia  salutari;  et  aliis  injunctis,  quae  fuerint  de  jure  injungenda. 

III.  Absolvendi  quoscumque  poenitentes  (exceptis  haereticis 
publicis,  sive  publice  dogmatizantibus),  a  (juibusvis  seutentiis, 
censuris,  et  poenis  ecclesiasticis  incursis  ob  haereses  tam  nemine 
audiente,  vel  advertente,  quam  coram  aliis  externatas:  ob  infideli- 
tatem,  et  catholicae  fidei  abjurationem  private  admissas,  sortilegia 
ac  maleficia  haereticalia  etiam  cum  sociis  patrata,  necnon  ob 
daemonis  iuvocationem  cum  pacto  donandi  animam,  eique  prae- 
stitam  idolatriam,  ac  superstitioues  liaereticales  exercitas,  ac 
demum  ob  quaecumque  insiiuiata  falsa  dogmata  incursis,  post- 
qiiam  tamen  poenitens  complices,  si  quos  habeat,  prout  de  jure, 
denunciaverit;  et  quatenus  ob  justas  causas  nequeat  ante  absolu- 
tioneni  denunciare,  facta  a  poenitente  seria  promissione  deuun- 
ciationem  peragendi  cum  primum,  et  meliori  modo,  quo  fieri 
poterit;  et  postquaiii  in  singulis  casibus  coram  Absoivente  haereses 
secrete  abjuraverit,  et  pactum  cum  maledicto  daemone  initum 
expresse  revocaverit,  tradita  eidem  Absolventi  syugrapha  forsan 
exarata,  aliisque  mediis  superstitiosis,  ad  omnia  comburenda,  seu 
destruenda;  injuncta  pro  modo  excessuum  gravi  poenitentia 
salutari  cum  frequentia  sacramentorum  et  obligatione  se  retrac- 
tandi  apud  personas  coram  quibus  haereses  manifestavit,  et 
leparandi  illata  scandala. 

IV.  Absolvendi  a  censuris  incursis  ob  violationem  clausurae 
Kegularium  utriusque  sexus,  dummodo  non  fuerit  commissa  cum 
intentione  ad  malum  finem,  etiam  efi'ectu  non  secuto,  nee  casus 


184  LEGAL    FORMULARY. 

fuerint  ad  forum  Ordiuarii  deducti,  cum  congrua  poenitentia 
salutari.  Et  insuper  absolvendi  mulieres  tantum  a  censuris,  et 
poenis  ecclesiasticis,  ob  violationem  ad  malum  flnem  clausurae 
virorum  religiosorum  incursis,  dummodo  tamen  casus  occulti 
remaneant;  injuncta  gravi  poenitentia  salutari,  cum  prohibitione 
accedendi  ad  Ecclesiam  aut  Conventum,  seu  coenobium  dictorum 
religiosorum  durante  occasione  peccandi. 

V.  Absolvendi  a  censuris  ob  retentionem  et  lectionem  librorum 
prohibitorum  incursis,  injuncta  congrua  poenitentia  salutari, 
necnon  flrma  obligatione  tradendi  prout  de  jure,  sive  per  se,  sive 
per  alium  absque  ulla  mora,  et  quantum  fieri  poterit  ante  absolu- 
tionem,  libros  prohibitos,  quos  poenitens  in  sua  potestate  retineat. 

VI.  Absolvendi  a  casu  Apostolicae  Sedi  reservato  ob  accepta 
munera  a  regularibus  utriusque  sexus,  injuncta  poenitentia 
salutari  et  quando  agitur  de  muneribus  quae  valorem  decem 
scutatorum  non  excedunt,  imposita  aliqua  eleemosyna  Absolventis 
judicio  taxanda,  et  caute  eroganda,  cum  primum  poterit,  in  bene- 
ficium  religionis  aut  conventus  cui  f acienda  esset  restitutio;  dum- 
modo tamen  non  constet,  quod  ilia  fuerint  de  bonis  propriis 
Religionis;  quatenus  vero  accepta  munera,  vel  fuerint  ultra 
valorem  scutatorum  decem,  vel  constet  fuisse  de  bonis  propriis 
Religionis,  facta  prius  restitutione,  quam  si  de  praesenti  poenitens 
adimplere  nequeat,  emissa  seria  promissione  restituendi  infra  ter- 
minum  Absolventis  arbitrio  i^raefiniendum;  alias  sub  reiucidentia. 

VII.  Absolvendi  a  censuris,  et  poenis  ecclesiasticis  eos,  qui  sectis 
vetitis  massonicis,  aut  carbonariis,  aut  aliis  ejusdem  generis  sectis 
nomen  dederunt,  aut  qualemcumque  favorem  praestiterunt,  ita 
tamen  ut  a  respectiva  secta  omnino  se  separent,  eamque  abjurent, 
libros,  manuscripta,  ac  signa  sectam  respicientia,  si  quae  retineant, 
in  manus  Absolventis  tradant  ad  Ordinarium  quam  primum  caute 
transmittenda,  aut  saltem,  si  justae  gravesque  causae  id  jjostulent, 
comburenda,  injuncta  pro  modo  culparum  gravi  poenitentia 
salutari,  cum  frequentia  sacramentalis  confessionis,  aliisque  in- 
junctis  de  jure  injungendis;  necnon  absolvendi  eos,  qui  ejusmodi 
sectarum  duces  et  coryphaeos  occultos  denunciare  culpabiliter 
neglexerint,  injuncta  pariter  salutari  poenitentia,  et  firma  obliga- 
tione sub  reincidentia  eosdem  Vobis  vel  aliis,  ad  quos  spectat, 
prout  de  jure  denuntiandi. 

VIII.  Absolvendi  Religiosos  cujuscumque  Ordinis  (etiam 
moniales,  per  confessarios  tamen  pro  ipsis  a  Vobis  approbatos,  vel 
specialiter  deputandos)  non  solum  a  praemissis,  sed  etiam  a 
casibus  et  censuris  in  sua  Religione  reservatis,  dunmiodo  Religiosi 


SPECIAL    FACULTIES.  185 

apud  Con/essariuni  sulxlclefjrUum  /cfjifiniani  habueiint  licentiavi  j^cr- 
ayendi  confess ionem  saci'amentalem. 

IX.  Dispensandi  ad  petcndum  debitum  conjuj^ale  cum  trans- 
ffressore  voti  castitatis  privatim  emissi,  qui  matrimoiiium  cum 
dicto  voto  contraxerit,  hujusmodi  penitentem  moueudo,  ipsum 
ad  idem  votum  servaiidum  teiieri  tam  extra  licitum  matrimonii 
usum,  quam  si  marito,  vel  uxori  respective  supervixerit. 

X.  Dispensandi  cum  incestuoso,  vel  incestuosa,  ad  petendum 
debitum  couju^ale,  cujus  jus  amisit  ex  superveniente  occulta 
affinitate  per  copulam  carnalem  habitam  cum  consan^uinea,  vol 
consan^uineo  sivo  in  primo  sive  in  prime  et  secundo,  sive  in 
secundo  gradu  suae  uxoris,  seu  respective  mariti,  remota  occasione 
peccandi,  et  injuncta  ^ravi  poenitentia  salutari,  et  confessione 
sacramental!  singulis  mensibus,  per  tempus  arbitrio  Dispensantis 
statuendum. 

XL  Dispensandi  super  occulto  impedimento  primi,  necnon 
primi  et  secundi,  ac  secundi  tantum  gradus  atfinitatis  ex  illicita 
carnali  copula  provenientis  quando  agatur  de  matrimonio  cum 
dicto  impedimento  jam  contracto;  et  quatenus  agatur  de  copula 
cum  suae  putatae  uxoris  matre,  dummodo  ilia  secuta  f  uerit  post 
ejusdem  putatae  uxoris  nativitatem,  et  non  aliter;  monito  poeni- 
tente  de  necessaria  secreta  renovatione  consensus  cum  sua  putata 
uxore,  aut  suo  putato  marito,  certiorate  seu  certiorata  de  nullitate 
prioris  consensus,  sed  ita  caute,  ut  ipsius  poenitentis  delictum 
nusquam  detegatur;  et  quatenus  haec  certioratio  absque  gravi 
periculo  fieri  nequeat,  renovate  consensu  juxta  regulas  a  probatis 
auctoribus  traditas;  remota  occasione  peccandi,  ac  injuncta  gravi 
poenitentia  salutari  et  confessione  sacramentali  semel  in  mense 
per  tempus  Dispensantis  arbitrio  statuendum. 

Item  de  speciali  et  expressa  Apostolica  auctoritate  Vobis 
facultatem  concedimus  dispensandi  super  dicto  occulto  impedi- 
mento, seu  impedimentis  atfinitatis  ex  copula  illicita  etiam  in 
matrimoniis  contrahendis  dispensandi  que  facultatem  subdelcgandi, 
etiavi  hahitualiter,  parochi's  vestrac  dioecesis,  quando  tamen  omnia 
parata  sint  ad  nuptias,  nee  matrimouium  usquedum  ab  Apostolica 
Sede  obtineri  possit  dispensatie  absque  periculo  gravis  scandali 
dift'erri  queat,  remota  semper  occasione  peccandi,  et  firma 
remanente  conditione,  quod  copula  habita  cum  matre  muUeris 
hujus  nativitatem  non  antecedat:  injuncta  in  quolibet  casu  poeni- 
tentia salutari, 

XII.  Dispensandi  super  occulto  criminis   impedimento,  dum- 
modo sit  absque  ulla  machinatioue  et  agatur  de  matrimonio  jam 
25 


186  LEGAL    FORMULARY. 

contracto;  monitis  putatis  conjugibus    de   necessaria  consensus 
secreta  renovatione. 

Item  ex  eadam  specLali  ct  expressa  Apostolica  fMictoritate  pariter 
facultatem  concedinius  dispensandi  sux)er  eodem  occulto  inip)edi7)ieiito, 
dummodo  sit  absque  ulla  machmatione,  etiani  in  7nc(tri7ii07iiis  contra- 
hendis,  in  casibus  tamen  urgcntiuribus  m  quibns  tempus  non  suppetat 
recurrendi  ad  S.  Sedem;  injuncta  in  utroque  casu  gravi  poeniteyitia 
salutari,  et  coyifessione  sacranientali  semel  singulis  mensibns  per  tem- 
pus Dispensaniis  arbitrio  statueudum. 

N.  B.  Mens  nostra  est:  1*^  Ut  si  forte  ex  oblivione  vel  inadvei'- 
tentia  ultra  jiraedictum  temiinum  his  factUlo.tibus  Vos  lUi  contingat, 
absolutiones  sen  dispensationes  exindc  impertitae  ratae  sint  et  validae; 
'Z^  Ut  injunctio  confci<sionis  sacrarnentaiis  de  qua  sub  7in,  x,  xi,  et  xii, 
non  sit  IRRITATIVA  sed  tantiim  praeceptiva;  3"  Ut  his  facultatibus 
non  solum  singillatim  sed  etiam  cumulatim  i7i  u7io  codemquc  casu  uti 
possitis. 

Datum  Romae  ex  Aedibus  Nostris  die  5  Maji  1896. 

B.  POMPILI,  S.  P.   Corrector. 
R.  Celli,  S.  p.  tSubstit. 


CHAPTER  VI. 

SACRAMKNT  OF  HOLY  ORDERS. 

185.  It  is  a  dog'ma  of  faith  that  there  is  in  the 
catholic  church  a  divinely  constituted  hierarchy 
consisting"  of  bishops,  priests  and  ministers.  This 
hierarchy  is  founded  not  on  carnal  g-eneration  and 
succession  as  in  the  old  law,  but  on  election  and 
ordination.  Hence  holy  order  is  a  sacrament  by 
which  is  conferred  permanently  the  power  to  conse- 
crate the  Holy  Eucharist  and  rig-htly  to  perform 
other  ecclesiastical  functions.  Only  a  consecrated 
bishop  is  the  minister  of  major  orders.  By  special 
delegation  of  the  Holy  See  a  priest  may  confer  minor 
orders,  the  ordinary  minister  being"  the  bishop.  For  the 
validity  of  ordination,  besides  other  essential  require- 
ments the  intention  of  ordaining*  is  required  in  the 
bishop;  for  licity  it  is  also  required  that  the  bishop 
confer  orders  only  on  his  own  subjects,  who  should 
be  of  proper  age  and  have  probity,  knowledge  and  a 
title  of  ordination.  Ordination  should  moreover  be 
held  at  proper  time  and  place,  and  with  interstices 
and  after  previous  proclamation. 

186.  A  person  may  be  the  subject  of  a  bishop  b}^  rea- 
son of  a  benefice  which  he  peacefully  holds  in  his 
diocese;  by  reason  of  birth  in  the  diocese;  b}'  reason 
of  a  certain  and  stable  domicile  in  it;  or  by  reason  of 
being  an  actual  familiar  of  the  bishop,  that  is,  in  his 

1S7 


188  LEGAL    FORMULARY. 

service  and  supported  by  htm  for  three  full  years 
previously  to  ordination.  In  such  case  the  candidate 
for  ordination  must  produce  testimonial  letters  from 
the  bishop  ruling"  the  diocese  of  his  orig-in  or  previous 
domicile.  Relatives  are  not  considered  familiars 
unless  they  actually  are  in  the"  service  of  the  bishop. 

The  bishop  for  a  reg'ular  with  solemn  vows  is  only 
the  bishop  of  the  diocese  wherein  is  situated  the 
monastery  in  which  the  candidate  lives.  The  can- 
didate's superiors  in  the  order  may  grant  dimissorial 
letters  to  this  bishop,  and  if  he  is  absent,  impeded  or 
not  intending  to  hold  an  ordination,  then  to  any 
other  bishop;  but  in  such  case  mention  of  this  reason 
must  be  made  in  the  dimissorial  letters.  However, 
some  religious  orders  by  special  privilege  ma}^  have 
their  candidates  ordained  by  any  catholic  bishop. 
It  should  be  noted  that  a  bishop  is  suspended  from 
conferring"  orders  for  a  year,  if  he  ordains  the  sub- 
ject of  another  without  dimissorial  letters,  or  even 
his  own  subject  who  has  lived  outside  the  diocese 
for  a  time  sufficient  to  contract  a  canonical  impedi- 
ment, unless  he  brings  testimonial  letters  from  the 
bishop  of  such  place.     {Cf.  Const.  Ap.  Sedis.) 

187.  The  candidate  for  orders  should  have  the 
necessary  requirements,  both  positive  and  neg^ative. 
The  positive  requirements  are  ag"e,  knowledgfe, 
piety.  For  tonsure  at  least  the  ag*e  of  seven  years 
is  required.  No  ag"e  is  specified  for  minor  orders,  but 
for  sub-deaconship  twenty-two  years  and  for  deacon- 
ship  twenty-three  is  required.  A  candidate  for 
priesthood  must  have  begun  his  twenty-fifth  year 
and  for  the  episcopate  he  must  have  completed  his 
thirtieth  year.     The  bishop  cannot  dispense  from  the 


TITLE   OP    ORDINATION.  189 

required  a.ge;  but  he  may  obtain  special  faculties  for 
the  purpose  from  the  Holy  See.  The  ordinandi 
should  have  sufficient  knowled«-e  and  be  of  g'ood 
character  as  well  as  confirmed  in  the  faith.  The 
neg"ative  requirements  are  freedom  from  impediments 
and  irreg'ularities.  These  proceed  either  from  crime 
or  from  defect.  Of  the  first  kind  are  homicide  or 
mutilation  of  the  body,  iteration  of  baptism,  forbid- 
den exercise  of  orders,  heresy.  Of  the  second  kind 
are,  defects  of  mind,  body,  condition  or  lenity. 

188.  Reg'ardingf  the  title  of  ordination  the  Sacred 
Congfre^ation  of  the  Propag^anda  on  April  27,  1871, 
issued  a  special  instruction  in  which  these  points  are 
prominent.  No  one,  except  solemnly  professed 
relio*ious  who  vow  personal  poverty,  is  allowed  to 
be  ordained  without  a  title  which  is  his  means  of 
support.  There  are  two  kinds  of  title,  ecclesiasti- 
cal and  patrimonial.  This  latter  obtains,  when  the 
candidate  has  such  an  income  from  certain,  stable, 
unencumbered  property,  as  in  the  judg^ment  of  the 
bishop  will  suffice  for  his  decent  support.  He  ma}" 
also  have  a  perpetual  pension  or  life  annuity  from 
property,  but  in  both  cases  the  property  should  be 
immovable,  or  permanent  securities.  In  case  of 
necessity  or  utility  the  bishop  may  ordain  a  candi- 
date having-  such  title  as  his  means  of  support. 

189.  The  ecclesiastical  title  is  divided  into  that  of 
benefice  and  that  of  povert3\  to  which  are  added  as 
subsidiary  or  extraordinary  the  titles  of  common 
table,  service  of  the  church,  mission,  sufficiency,  col- 
leg'e.  The  titles  of  colleofe  and  sufficienc\%  are  no 
long-er  used.  That  of  service  of  the  church,  also 
rarely  used,  means  that  a  cleric  is  ordained  for  min- 


190  LEGAL    FORMULARY. 

isterin^  in  a  certain  church  which  he  may  not  leave, 
and  from  which  service  and  the  alms  of  the  faithful 
he  derives  a  sufficient  support.  The  title  of  poverty 
(really  a  neg-ative  title)  is  founded  on  a  religious 
profession  and  means  that  the  individual  must  derive 
his  support  from  the  g"oods  of  the  relig-ious  order 
and  the  alms  of  the  faithful  gfiven  to  the  order.  The 
title  of  common  table  is  a  similar  title  used  by  those 
clerics  who  live  in  community  as  relig'ious,  but  take 
no  vows  or  only  simple  ones.  Not  all  communities, 
but  only  such  as  have  an  apostolic  indult  may  use 
this  title  of  ordination. 

190.  The  title  of  mission  is  the  one  used  for  those 
who  are  to  devote  themselves  to  the  service  of  apos- 
tolic missions,  when  no  other  title  can  be  supplied. 
Priests  ordained  with  this  title  receive  what  is  nec- 
essary for  their  support  from  the  missions  wherein 
they  labor.  But  since  this  is  an  extraordinary  title, 
not  known  to  common  law,  it  is  evident  that  bishops 
cannot  ordain  under  it  except  by  special  indult  of  the 
Holy  See  and  on  conditions  laid  down  by  it.  Thus 
even  in  dioceses  canonically  erected,  priests  ordained 
titiilo  viissionis  still  remain  under  the  special  protec- 
tion of  the  Propaganda  and  the  Cong-regfation  alwa3^s 
insists  on  their  proper  maintenance  by  the  diocese  to 
which  they  belong.  In  a  strictly  legal  sense  a  priest 
ordained  by  this  title  is  bound  directly  to  the  Propa- 
ganda and  indirectly  to  the  diocese  or  province  to 
which  he  swears  to  devote  his  services. 

191.  The  oath  taken  by  the  priest  who  is  ordained 
titiilo  missionis  is  to  the  effect  that  he  will  not  join 
any  religious  order  or  community  without  the  special 
permission  of  the  Apostolic  See  and  that  he  will  per- 


TITLE   OF    MISSION.  191 

petually  labor  in  the  ministry  for  the  g"ood  of  souls 
under  the  entire  direction  and  jurisdiction  of  the  or- 
dinary for  whose  diocese  he  is  ordained.  This  oath, 
it  should  be  remarked,  does  not  o-ive  a  bishop  in  a 
missionary  country  any  more  extensive  power  than  a 
bishop  has  elsewhere.  The  (general  principles  of 
canon  law  must  be  observed  by  both  bishop  and 
priest.  The  same  instruction  of  the  Sacred  Propa- 
ganda says  that  ordinaries  may  use  the  services  of 
priests  ordained  by  other  titles  than  that  of  mission, 
and  that  such  priests  cannot  be  forced  to  chang-e 
their  title  for  that  of  mission.  On  the  contrary  the 
Sacred  Congreg'ation  explicitly  asks  of  ordinaries 
that  other  legitimate  titles  be  introduced  as  much  as 
possible  instead  of  that  of  mission.  In  this  respect 
a  priest  ordained  tititlo  viissionis,  when  appointed  to 
an  irremovable  rectorship,  may  be  supposed  to 
chang-e  his  title  to  that  of  a  parochial  benefice,  and  a 
bishop  to  that  of  his  diocese. 

192.  The  title  of  mission,  like  others,  may  be  lost 
or  taken  away  by  ordinaries  with  the  consent,  how- 
ever, of  the  Holy  See.  In  such  case  the  priest  is  not 
suspended,  but  should  be  forced  by  the  bishop  to 
supply  another  title.  (C/'.  S.  Cong.  Prop.  Sept,  /, 
18^6.)  In  the  same  way  reg'ular  priests  who  have 
made  solemn  vows  and  by  permission  of  the  Holy 
See  live  in  the  world,  or  those  making-  simple  vows 
and  leaving"  their  congreg^ations  or  institutes  are 
oblig-ed  to  procure  another  title,  and  in  missionary 
countries  they  must  prove  that  at  least  they  have 
sufficient  means  of  support.  The  Propaganda  on 
February  4,  1873,  allowed  bishops,  before  conferring- 
the  title  of  mission  on  reg^ulars  who  have  left  their 


192  LEGAL    FORMULARY. 

order  or  institute,  to  send  them  for  a  congruous  time 
to  some  mission  on  trial.  But  this  does  not  apply  to 
apostates  (runaways)  nor  to  those  expelled  from  the 
order  as  incorrio*ible,  for  these  are  perpetually 
suspended.     (C/.  Cong.  Cone.  21  Sept.  162^.) 

193.  In  the  same  decision  {S.  Prop.  Feb.  4,  ^^Syj) 
the  rule  was  laid  down  that  when  a  priest,  ordained 
titulo  viissionis,  has  rendered  himself  unworthy  to 
exercise  the  sacred  ministry,  the  bishop  should  make 
a  declaration  to  the  priest  to  the  effect  that  "because 
of  such  un worthiness  he  remains  deprived  of  the  title 
of  mission  and  consequently  of  the  rig-ht  to  support 
from  the  diocese;"  and  thereafter  so  long-  as  the 
priest  perseveres  in  his  preverse  way  of  living",  g^iv- 
ing"  no  sig'n  of  repentance,  the  bishop  is  not  bound  to 
give  him  support.  At  the  same  time  it  was  inti- 
mated that  bishops  should  not  proceed  to  such  a  final 
declaration,  until  after  using'  in  vain  and  repeatedly 
all  paternal  admonitions  and  until  they  have  pro- 
cured sure  proofs,  obtained  also  extrajudicially,  of 
the  priest's  crimes  and  public  defamation.  These 
proofs  in  case  of  recourse  will  be  on  record  to  be  sent 
to  the  Holy  See,  or  in  the  United  States  to  the  Apos- 
tolic Leg'ation,  and  will  ward  off  trouble  from  the 
bishop  interested  and  his  successors.  {Cf.  }i.  120 
above^  p.  118;  II  PI.  Coicn.  Bait.  )i.  77;  ''Ciun 
7)1(1  g'nof ere ^^^  art.  ^5.) 

194.  In  the  United'  States  a  priest  ordained  titido 
7nissio7iis  for  one  diocese  may  now  with  the  consent 
of  his  bishop  be  adopted  into  another  diocese  of  the 
same  province  without  the  necessity  of  consulting* 
the  Propaganda.  In  such  case  he  need  but  renew 
his  oath  for   the  new  diocese  when  he  acquires  an 


CHANGE   OF    DIOCESE.  193 

ineat^  if  he  had  taken  the  oath  for  his  diocese  pre- 
vious to  Nov.  30,  1885.  Since  that  date  the  mis- 
sionary oath  is  taken  not  for  the  diocese  but  for  the 
province  and  need  not  be  renewed  when  a  priest, 
ordained  since  then,  is  transferred  from  one  diocese 
to  another  within  the  same  province.  {Cf.  Decretum 
S.  Cong-.  Prop,  jo  Nov.  i88^.)  When  a  transfer  is 
made  from  one  province  to  another,  the  consent  of 
the  Propag^anda  is  required  as  formerly.  A  virtual 
incardination  into  a  diocese,  no  matter  what  the  title, 
occurs  ipso  facto  at  the  expiration  of  three  and  of 
five  years'  service  unless  the  bishop  has  explicitly 
stated  the  contrary  to  the  priest  before  the  end  of 
such  respective  period.     (///  Conn.  Bait.  n.  6j.) 

195.  As  to  the  ordination  itself,  it  should  not  be 
pe7'  saltiun  and  proper  interstices  should  be  kept 
unless  an  apostolic  faculty  for  dispensation  is  used. 
Even  in  such  case  minor  orders  and  sub-deaconship 
should  not  be  conferred  on  the  same  person  in  one 
day,  nor  two  of  the  major  orders.  Still  no  punish- 
ment is  attached  to  such  reception  of  orders.  The 
time  for  g^iving-  orders  is  any  day  and  hour  for  ton- 
sure; Sundays  and  holy  days  of  oblig'ation  (also  sup- 
pressed) for  minor  orders,  and  during"  mass  as  a  mat- 
ter of  propriety.  Holy  orders  are  given  on  the  Sat- 
urdays of  the  ember  weeks,  the  Saturdays  before 
Passion  and  Easter  Sundays,  and  always  during 
mass.  Bishops  should  be  consecrated  only  on  Sun- 
days and  feasts  of  the  apostles  during  mass  at  nine 
o'clock  in  the  morninof.  A  greneral  ordination  must 
be  held  in  the  cathedral,  {S.  R.  C.  i6  Sept.  iy4.y) 
but  if  only  a  certain  few  are  to  be  ordained  it  may 

be  held  in  any  church  and  also  in  the  bishop's  private 

20 


194  LEGAL    FORMULARY. 

chapel.     (Cy.   S.   C,  Co7zc.  in  Melit.  20  Nov.   i5g2.) 

196.  An  announcement  of  the  ordination  to  be  held 
and  of  the  persons  of  the  parish  to  be  ordained  is  to 
be  made  by  patish  priests  one  or  two  months  before 
the  ordination  occurs,  so  that  any  objections  or  im- 
pediments may  be  made  known.  {.Cf.  Cone,  Trid. 
c.  5,  scss.  2 J  dc  reform.^  The  parish  priest  will 
then  o-ive  testimonial  letters  regarding-  the  birth,  a^e, 
life,  character  of  the  ordinandi.  A  second  examina- 
tion is  made  by  the  bishop  througfh  his  appointed 
examiners  who  will  inquire  into  the  knowledg'e  of 
the  candidates.  The  third  examination — a  merely 
formal  one — is  made  by  the  bishop  himself  during- 
ordination  when  he  asks  the  arch-deacon  whether  he 
knows  the  candidates  to  be  worthy.  To  this  the 
arch-deacon  replies  according-  to  his  public  not  private 
knowledg'e. 

The  special  faculties  conferred  on  bishops  of  the 
United  States  reg-arding-  ordination  are  g-iven  below 
in  chapter  VIII. 

197.  When  the  bishop  intends  holding-  a  g-eneral 
ordination  the  following-  edict  or  notice  should  be 
published  in  proper  form: 

"N —  Bishop  of  N — .  To  each  and  all  who  dwell 
within  the  limits  of  our  diocese  and  jurisdiction,  also 
to  reg-ulars,  by  these  presents  We  g-ive  notice  that 
We  shall  solemnly  hold  a  g-eneral  ordination  in  our 
cathedral  on  the  Saturday  of  the  spring-  ember  week 

which    will  be   the  day  of   of   the  present 

year.  Wherefore  those  who  desire  to  be  promoted 
to  the  various  sacred  orders,  in  accordance  with  the 
Sacred  Council  of  Trent,  sess.  23,  c.  5,  de  reform., 
will  express  to  Us  their  desire  a  month  previously  to 
the  time  for  ordination,  and  later  will  present  them- 


NOTICE   OF    ORDINATION.  105 

selves  before  Us  and  our  examiners  in  our  episcopal 
residence  at  ten  o'clock  a.  m.  of  the  Wednesday  pre- 
ceding" the  ordination,    i.   e.  on   the day  of 

A.  D. ,  to   be  examined   in  accordance  with  law. 

Those  wishing"  promotion  to  minor  orders  will  also 
appear  for  examination  at  the  same  time  and  place, 
and  all  will  bring"  with  them  the  necessary  testi- 
monial letters  regfarding"  ag"e,  birth,  character,  pre- 
vious orders  and  other  requisites,  in  order  that  those 
found  fit  and  worthy  may  be  admitted.  To  this  end 
We  command  all  pastors  of  our  city  and  diocese  to 
publish  this  edict  during"  mass  on  the  first  Sunday 
after  receiving"  it,  and  to  make  proper  report  to  Us 
concerning"  the  various  candidates  for  ordination  who 
may  belong"  to  their  respective  parishes,  under  sanc- 
tion to  be  inflicted  in  accordance  with  our  discretion. 
Given  &c.  N.   N.  Bishop  of  N. 

N.  N.  Bishop's  Chancellor." 

108.  The  announcement  of  the  parish  priest  may 
be  made  in  these  or  similar  words  : 

"N.  N.  of  this  parish  wishes  to  receive  tonsure 
(minor  orders,  sub-deaconship)  at  the  coming-  ordi- 
nation. Wherefore  if  anyone  knows  of  an}-  canonical 
impediment  on  account  of  which  he  should  not  re- 
ceive orders,  such  a  one  is  oblig"ed  in  charity  and  by 
virtue  of  holy  obedience  to  make  such  impediment 
known  to  me  within  eigfht  days,  to  the  end  that  if 
no  such  impediment  is  discovered  the  said  N.  N.  may 
receive  (tonsure)  orders." 

The  pastor  should  mention  and  explain  the  imped- 
iments. The  letter  of  the  pastor  testifying-  to  the 
proclamation  may  be  : 

"I,  the  undersig"ned  pastor  of  St. church  in 

N —  testify    that   during"    mass  on  a  Sundav,  i.  e.  on 
day  of A.  D. ,  I  announced  that  N.  N. 


196  LEGAIv    FORMULARY. 

wishes  to  receive  tonsure  sub-deaconship)  and  after 
pointing"  out  the  different  impediments  which  might 
prevent  such  reception  (or  ordination)  I  admonished 
all  and  everyone  conscious  of  any  such  impediment 
to  make  it  known  to  me  in  charity  and  holy  obedience. 
I  further  testify  and  certify  that  no  impediment  was 
discovered.  In  testimony  whereof  I  have  given  these 
letters  under  oath  sig'ned  by  my  own  hand  and  sealed 

this day  of A.  D. . 

N.  N.  Parish  Priest  of  N— ." 

199.  The  parish  priest's  certificate  of  baptism  for 
a  candidate  for  tonsure  may  be  worded  thus  : 

"Ego,  infrascriptus  rector  (vel  parochus)  ecclesise 

S —  in  N —  praesentibus  litteris  testor  N.  N.  in 

aetatis  anno  constitutum,  filium  legitimum  et  natura- 
lem  N.  et  N.  conjugum,  ex  hac  mea  parochia,  fuisse 
baptisatum  sub  die  — ,  prout  constat  ex  libro  baptis- 
atorum  hujus  parochise,  in  quo  sic  habetur;  (ponantur 
ipsamet  verba  libri.)  In  cujus  fidem  praesentes  lit- 
teras  etiam  juramento  interposito  manu  propria  sub- 

scripsi  etsig"illo  meo  munivi,  die — .  m. A.  D.  — . 

N.  N.  Parochus." 

If  it  should  happen  that  no  record  of  baptism  can 
be  procured,  and  the  candidate  is  born  of  catholic 
parents  and  among*  catholics,  this  fact  alone  is  suf- 
ficient presumption  of  baptism  and  is  considered 
proof  of  it  unless  proofs  are  advanced  to  show  he  was 
not  baptised.  iCf,  C.  veniens  in  fine  de  Pres.  ?ion 
haft.)  Even  if  a  person  is  born  of  catholic  parents 
among  heretics,  dimissorial  letters  cannot  be  re- 
fused because  a  certificate  of  baptism  is  wanting-. 
{S.  Cong.  Epp.  in  Land,  jo  Ang.  i6ig.)  Often  the 
sworn  testimony  of  witnesses  to  the  baptism  may  be 
procured  to  remedy  the  deficiency  in  the  record. 


TESTIMONIALS   FOR   ORDERS.  197 

200.  Following-  is  the  form  for  testimonial  letters 
of  the  diocesan  chancellor  certifying  to  a  title  of 
benefice: 

"E^o  infrascriptus  curi^  episcopalis  N —  cancel- 
larius  per  praesentes  fidem  facio,  clericum  N.  N.  qui 
ad  sacros  ordines  promoveri  cupiat,  revera  beneficium 
habere  ecclesiasticum  in  ecclesia  S.  N.  hujus  di(je- 
ceseos  sub  invocatione  S.  N.  erectum,  (prout  constat 
ex  litteris  collationis  illi    factae  per  N —  mihique  ex- 

hibitis)  illudque  annui  redditus  scutatorum vere 

et  pacifice  possidere,  prout  testes  super  his  formiter 
a  me  examinati  deposuerunt.  Insuper  testor  Rev"^^^^ 
D.  Vicarium  g-eneralem  pronunciasse  et  decreto 
declarasse  praefatum  beneficium  esse  sufficiens,  ita 
ut  idem  clericus  N.  N.  ad  illius  titulum  sacris  ordi- 
nibus  initiari  valeat,  ut  constat  ex  meis  actis.  In 
quorum  fidem  has  litteras  meo  solito  sig"illo  meaque 
manu  roboravi.     Die  &c.     Ita  est. 

N.  N.  Cancellarius  Episcopalis." 

201.  Following-  is  the  diocesan  chancellor's  certi- 
fication regarding  the  title  of  patrimon}^  under  which 
a  candidate  seeks  ordination  from  his  bishop: 

*'Per  praesentes  litteras  testimoniales  omnibus  ego 
infrascriptus  cancellarius  fidem  facio  clericum  N.  N. 
patrimonio  praeditum  esse,  prout  constat  ex  instru- 
ment© assignationis  et  constitutionis  ejusdetn  facto 

die  m.  A.   D.   ,  per  notarium   N.    N. 

mihique  exhibito,  idemque  patrimonium  consistere 
in  pra^dio  (vel  alias)  et  esse  annui  redditus scu- 
tatorum. Insuper  testificor  dictum  patrimonium  a 
Rev^.  D.  Vicario  g-enerali  hujus  curiae  esse  approba- 
tum,  ita  ut  ad  titulum  illius  dictus  clericus  N.  N. 
ad  sacros  ordines  promoveri  valeat,  si  ita  videbitur 
expedire  111^  et  Rev?i^  D.  Episcopo.  Denique 
testor  supradictum  N.  N.  vere  et  pacifice  dictum 
patrimonium  possidere   et    fructus   percipere,    prout 


198  LEGAL    FORMULARY. 

testes  super  praedictis  a  me  examitiati  deposuerunt, 
ac  de  omnibus  constat  ex  meis  actis.    In  quorum  &c. 

N.  N.  Canceliarius  Episcopalis." 

> 

202.  Following-  is  a  copy  of  the  oath  to  be  taken 
and  sig-ned  by  a  cleric  to  be  ordained  titiilo  missionis. 
The  paper  is  to  be  retained  in  the  chancery: 

"Eg'o  N — filius  N —  dioecesis  (vel  vicariatus)  N — 
spondeo  et  juro  quod  postquam  ad  sacros  ordines 
promotus  fuero,  nullam  relig^ionem,  societatem  aut 
congfre^ationem  reg^ularem  sine  speciali  Sedis  Apos- 
tolical licentia  aut  S.  Conoreg-ationis  de  Prop.  Fide 
ing'rediar  neque  in  earum  aliqua  professionem  emit- 
tam.  Voveo  pariter  et  juro  quod  in  hac  diocesi  (vel 
vicariatu)  et  (inseri  debet  ^r6>?7^V^<::^«  ex  decreto  S.  C. 
Prop.  Nov.  30,  1885)  provincia  perpetuo  in  divinis 
administrandis  laborem  meum  ac  operam  sub  omni- 
moda  directione  et  jurisdictione  R.  P.  D.  pro  tem- 
pore Ordinarii  pro  salute  animarum  impendam,  quod 
etiam  praestabo  si  cum  pra^dictae  Sedis  Apostolicse 
licentia  relig-ionem,  societatem  aut  conofre^ationem 
reg"ularem  ing-ressus  fuero  et  in  earum  aliqua  pro- 
fessionem emisero.  Item^voveo'  et  juro  me  pra^dic- 
tum  juramentum  et  ejus  oblig-ationem  intelligere  et 
observaturum.  Sic  me  Deus  adjuvet  et  haec  sancta 
Dei  evangfelia." 

203.  Application  for  a  chang-e  of  province  may  be 
made  to  the  S.  Propaganda  in  this  form: 

"Eminentissime  Princeps. 

N.  N.  sacerdos  titulo  missionis  ordinatus  pro  dioe- 
cesi  N — ,  annuente   suo  Episcopo  humiliter  petit  dis- 

pensationem  a  juramento  die  m.  a.  d. 

emisso,  ita  ut  in  dicecesim  N —  alterius  provincial 
ecclesiastical  licite  sub  simili  titulo  missionis  et  jura- 
mento incorporari  valeat. 


TESTIMONIAL'S    FOR    ORDERS.  199 

Purpuram   deosculans,    summa    qua  par    est    rever- 
entia  et  devotioiie  permaneo, 

Eminentiae  Vestrse 

Submississimus " 

"Libenter  annuimus  et  commendimus. 

N.  N.  Episcopus  N." 

204.  When  regulars  are  to  receive  from  their 
superiors  dimissorial  letters  for  ordination  they  first 
obtain  a  certificate  of  examination  and  competence 
from  the  examiners  of  the  order;  but  the  bishop  may 
also  examine  them  (except  the  Jesuits)  before  ordi- 
nation. FoUowinof  is  a  form  for  certifying-  to 
examination: 

"Nos  infrascripti  pro  examinandis  alumnis  juxta 
ordinis  constitutiones  deputati,  cunctis  ad  quos 
spectat  providere,  per  praesentes  testamur  clericum 
N —  in  nostra  relig^ione  professum  et  in  ordinibus  N — 
exercitatum,  coram  nobis  personaliter  constitutum 
et  probe  examinatum,  fuisse  ad  ordines  sacros 
idoneum  et  habilem  repertum;  ipsumque  propterea 
qui  ad  episcopum  suum  ordinarium  dimittatur  pro 
illis  suscipendis  dio-num  reputamus.  In  quorum 
4&C.     Datum  &c. 

N.  N.  S.  Theolog-ia^  professor  et  ordinis  examinator. 

N.  N.  S.  Theolog-iaiprofessoret  ordinis  examinator." 

205.  Following"  is  a  form  for  dimissorial  letters  to 
be  g-iven  by  the  superior  of  a  reg^ular  order  that  an 
inferior  may  be  ordained  by  the  diocesan  bishop: 

"N.N.  in  sa?culo  N.N.  (ordinando)  salutem.  Humil- 
itas  et  pietas  quas  profitemur  nos  cog-unt  et  inipellunt 
ut  selectos  et  probatos  juvenes  (vel  ministros)  ad  ser- 
viendum  Deo  in  nostra  relig"ione  coelitus  vocatos  ad 
sacra  munera  obeunda  promoveri  ad  ordines  curemus. 
Cumque  te  ad  liabitum  relig^ionis  admissum  {vcl 
libera  voluntate  in  relig"ione  nostra  professum)  et  in 


200  LEGAL   FORMULARY. 

conventu  N —  de  familia  existentem,  debita  setate, 
morumque  honestate  praeditum,  leg"itimis  natalibus 
ortum,  sacro  chrismate  delibutum,  nee  aliquo 
canonico  inipedimento,  quod  sciamus;  innodatum; 
necnon  per  examinatores  nostros  idoneum  repertum 
et  admissum  noverimus  ;  tenore  pra^sentium  cum 
salutaris  obedientiae  nierito,  ad  IHmum  qi  RevHlliS}  D. 
I^piscopum  tuuni  N.  N.  mittimus,  eumque  humiliter 
rog"amus  ut  tibi  sic  dimisso  et  licentiato,  hisproximis 

quatuor    temporibus    mensis (vel  alio  tempore 

juxta  circumstantias)  clericalem  tonsuram,  ostiar- 
iatus,  lectoratus,  exorcistatus  et  acolitatus  ordines 
minores  pro  necessitate  nostrarum  ecclesiarum  omnes 
simul  (si  sibi  expedire  videatur)  interstitiis  etiam  non 
servatis,  (pro  sacro  ordine  inseritur  "ad  titulum 
relig^iosae  paupertatis")  conferre  digfnetur.  Pro  quo 
et  etiam  pro  nobis  Deum  precari  non  cessabis. 
Datum  &c. 

[l.  s.]  N.  N.  Provincialis  Ord.  N. 

N.  N.  Secretarius." 

By  making-  proper  changfes  the  above  form  may  be 
used  by  a  regular  superior  in  g-ranting-  dimissorial 
letters  for  sacred  orders.  In  such  case  the  order 
which  the  candidate  has  already  received  should  be 
mentioned  and  also  the  title  "ad  titulum  relig*iosae 
paupertatis"  under  which  he  is  to  be  ordained. 

206.  When  the  diocesan  bishop  is  not  holding-  an 
ordination  and  reg-ulars  therefore  wish  to  be  ordained 
by  some  other  bishop  the  following-  form  of  letters 
should  be  obtained  for  presentation  to  the  bishop 
who  is  requested  to  ordain  such  reg'ulars: 

"Universis  et  sing-ulis  praesentes  litteras  testi- 
moniales  inspecturis  notum  facimus  et  testamur, 
quod  in  proximis  quatuor  temporibus  futuris  mensis 
—  in  liac  civitate  N —  neque  in  alio  dioecesis  loco  ob 
adversam    valitudinem     (sive    aliud    impedimentum) 


CERTIFICATE    OF    ORDINATION  201 

Illustrissimi  et  Reverendissimi  D.  mei  Episcopi, 
ordinationes  non  celebrabuntiir.  In  quorum  fidem 
&c.     Datum  &c. 

[ly.  s.]  N.  N.  Vicarius  Generalis. 

N.  N.  Cancellarius." 

207.  PoUowino-  is  a  form  of  letters  testifying  to 
the  ordination  of  an  individual: 

"N.  Dei  et  Apostolicse  Sedis  gratia  Episcopus  N. 
Universis  et  singulis  pra^sentes  nostras  testimoniales 
litteras  visuris  et  lecturis  fidem  indubiam  facimus  et 

testamur  quod  Nos  die mensis anni , 

(sabbato  quatuor  temporum  vel  alias)  generalem 
ordinationem  habentes  in  nostra  ecclesia  cathedrali 
inter  missarum  solemnia,  dilectum  in  Christo  N.  N. 
(si  est  exterus  inseritur  "cum  litteris  dimissorialibus 
Rmi  ;n^  ]sj^  gui  Ordinarii")  examinatum,  approba- 
tum,  idoneumque  repertum  per  examinatores  a  Nobis 
deputatos,  ad  ordinem  (si  ordo  est  sacer  exprimat 
titulum  missionis,  patrimonii  vel  alii  ad  quem  ordi- 
navitj  juxta  ritum  S.  R.  I^cclesia^,  servatis  forma 
Sacri  Cone.  Tridentini  ac  decretorum  S.  Congrega- 
tionum  aliisque  de  jure  servandis,  in  Domino  rite 
promovimus. 

[iv.  s.]  N.  Episcopus  N. 

N.  Cancellarius  Episcopalis." 

208.  When  a  person  has  been  ordained  by  dispen- 
sation the  following  form  may  be  used  with  proper 
changes: 

"N.  Dei  et  Apostolicae  Sedis  gratia  Episcopus  N. 
Per  prsesentes  cunctis  testamur,   quod  Nos,    vigore 

facultatum  a  Sancta  Sede  Nobis  die A.  D. 

concessarum,  in  nostra  ecclesia  cathedrali  (vel 
capella)  dilectum  Nobis  in  Christo  N.  N.  examina- 
tum, approbatum,  idoneumque  repertum  et  dispensa- 
tione  Apostolica  ab  impedimento  —  habilem  eifectum, 
die  —  mensis  —  a.  D.  —  ad  subdiaconatus,  die  vero — 
27 


202  LEGAL   FORMULARY. 

ejusdem  mensis  et  anni  ad  diaconatus,  die  denique 
—  ejusdem  etiam  mensis  et  anni  ad  presbyteratus 
sacros  ordines  ad  titulum  missionis  inter  missarum 
solemnia,  adhibitis  solemnitatibus  .juxta  ritum 
Sanctie  Romanae  I^cclesiae  et  servatis  forma  Sacri 
Cone.  Tridentini  aliisque  de  jure  servandis  promo- 
vimus.     In  quorum  &c. 

[l.  s.]  N.  Episcopus  N. 

N.  N.  Cancellerius  Episcopalis." 

209.  The  following*  form  of  dimissorial  letters  may 
be  used  with  proper  chano-es  when  a  bishop  gfrants 
permission  to  another  bishop  to  ordain  a  subject  who 
is  absent  from  his  diocese  in  a  seminary: 

"N.  Dei  et  Apostolicae  Sedis  g-ratia  E)piscopus  N. 
Dilecto  Nobis  in  Christo  N.  N.  salutem  in  Domino: 
Ut  tu,  a  nostra  dioecesi  studiorum  causa  absens, 
qui  leg"itimis  es  procreatus  natalibus,  (morum  probi- 
tate  ornatus — satius  omittitur  si  absentia  est  long"a) 
aitate  leg"itima,  ac  in  clericali  tonsura  constitutus, 
nulloque,  quod  sciamus,  canonico  impedimento,  quo- 
minus  ad  ordines  promoveri  possis,  reperiris  deten- 
tus,  ab  111^^  et  RevE2  D.  N.  N.  in  propria  vel  aliena 
dioecesi,  de  Ordinarii  loci  licentia  ordinationes  ten- 
ente  (vel  a  quocunque  IllE^  et  Rev^  D.  Antistite 
rite  et  canonice  promoto  g'ratiam  et  communionem 
Sanctae  Sedis  Apostolical  habente,  quem  ideo  adire 
malueris)  ad  ostiariatus,  lectoratus,  exorcistatus  et 
acolytatus  minores  ordines  promoveri  possis  et 
valeas;  dummodo  quoad  litteraturam  idoneus  reperi- 
aris,  super  quo  conscientiam  ordinantis  oneramus,  et 
intra  sex  menses  praesentibus  utaris  et  non  alias,  tua 
absentia  non  obstante,  licentiam  et  facultatem  utri- 
que  concedimus.  In  quorum  &c.  Datum  &c. 
[l.  s.]  N.  Episcopus  N. 

N.  N.  Cancellarius  Epis." 

If  the  dimissorial  letter  is  directed  to  the  Cardinal 


DIMISSORIAL     LETTERS.  203 

Vicar  of  Rome  or  to  any  other  cardinal  the  clause 
''super  quo  conscientiam  ordinantis  oneramus"  is 
omitted  on  account  of  his  dig"nity.  In  such  case  also 
the  title  "Eminentissimus  N.  Cardinalis  N."  should 
be  inserted. 

210.  Following*  is  a  form   which   may  be  used  for 
dimissorial  letters  for  a  student  in  Rome: 

"N.  Kpiscopus  &c.  Tibi  dilecto  Nobis  in  Christo 
N.  N.  leg'itimis  natalibus  procreato,  in  acolytatus 
ordine  (vel  tonsura  clericali)  et  aetate  leg*itima  vi^in- 
tiquatuor  annorum  completorum  constituto,  morum- 
que  probitate  ornato,  in  ecclesia  parochiali  N.  ex 
praiscripto  S.  Cone.  Tridentini  proclamato,  nullaque 
censura  ecclesiastica  aut  alio  canonico  impedimento 
innodato,  quod  sciamus,  aliisque  a  jure  requisitis 
praedito,  ut  ab  Eminentissimo  et  Reverendissimo  D. 
Cardinali  N.  Urbis  Vicario,  sive  illius  IllH12et  RevE2 
vices  Gerente  in  eadem  Urbe,  pontificalia  exercente, 
statutis  a  jure  temporibus  ad  sacros  subdiaconatus, 
diaconatus  et  presbyteratus  ordines  debitis  servatis 
interstitiis  aut  illis  non  servatis  cum  dispensatione 
tamen  Apostolica,  ad  titulum  missionis,  pro  utilitate 
nostrae  dioeceseos,  praestito  prius  consueto  juramento, 
promoveri  possis  et  valeas.licentiam  et  facultatem 
in  Domino  impertimur  et  concedimus;  dummodo 
tamen  quoad  scientiam  idoneus  et  habilis  reperiaris, 
cum  Nos  propter  tuam  absentiam  a  nostra  diciecesi 
de  ea  cogfuoscere  nequiverimus.  Volumus  etiani,  ut 
tu  postquam  fueris  ordinatus,  pra^cipue  in  ordine 
presbyteratus,  exhibere  tenearis  in  nostra  cancellaria 
testimoniales  litteras  tuae  ordinationis  infra  duos 
menses  sub  poena  suspensionis  ipso  facto  incurrenda, 
Nobis  reservata.  In  quorum  &c.  Datum  &c. 
[l.  s.]  N.  Episcopus  N. 

N.  N.  Cancellarius  Epis." 

211.  When  a  person  is  to  be  ordained  for  another 
diocese,   it  is  required    that    he  present    testimonial 


204  '  LKGAL    FORMUL^ARY. 

letters  from  the  bishop  of  the  diocese  wherein  he  has 
dwelt  a  sufficient  time  to  contract  an  impediment. 
Before  g-iving*  letters  of  recommendation  the  bishop 
should  make  dilig^ent  inquiries.  The  testimonial  let- 
ters must  be  given  and  sig-ned  by  the  bishop  himself, 
not  by  the  vicar  general  unless  by  special  mandate 
which  should  then  be  mentioned.  {Cj.S.  Con.  Cone, 
sii^ra  c.  S\  sess.  2j  de  reform.) 

"N.  Episcopus  &c.  Per  prsesentes  cunctis  indu- 
biam  fidem  facimus  atque  testamur,  dilectum  in 
Christo  N.  N.,  qui  ratione  originis  (vel  alias)  huic 
nostrae  jurisdictioni  noscitur  subjectus,  pro  tempore 
quo  in  loco  N —  in  quo  ex  legitimo  matrimonio  natus, 
educatus  et  commoratus  fuerit,  suse  probitatis  speci- 
men dedisse,  bonaque  fama,  vita  ac  moribus  praeditum 
fuisse  et  ex  hac  nostra  dioecesi  annos  natum  —  nullo 
delicto  quod  infamiam  irrog^et  patrato,  nullaque 
ecclesiastica  censura  aut  alio  canonico  impedimento, 
quod  sciamus,  innodatum  discessisse,  quominus  ad 
minores  seu  majores  sacros  ordines  ab  I11E12  et  Rev^ 
D,  Episcopo  N.  N.  juxta  canones  promoveri  possit. 
In  quorum  fidem  has  testimonials  litteras  manu 
nostra  subscriptas  expediri  jussimus.  Datum  &c. 
[l.  s.]  '  N.  Episcopus  N. 

N.  N.  Cancellarius  Episcopalis" 

212.  Testimonial  letters  combined  with  commen- 
dation are  g"iven  by  the  bishop  to  a  priest  about  to 
leave  the  diocese  on  vacation  or  business.  Follow- 
ing* is  a  g"eneral  form: 

*'N.  N.Deiet  Apostolicae  Sedis  g^ratia  Episcopus  N. 

Dilecto  Nobis  in  Christo  Revdo  D.  N.  N.  (S.  T.  D.) 
Rectori  (presbytero)  ecclesi^  S.  N — ,  in  loco  N. 
dioecesis  nostrae,  salutem  in  Domino.  Cum  propter 
rationes  a  Nobis  cog'nitas  et  admissas  ab  ecclesiatua 
abesse  cupias,  libenter  tibi,  relicto  in  cura  substituto 


TESTIMONIAL    LETTERS.  205 

a  Nobis  prius  approbando,  licentiam  discedendi  per 
tres  menses  tantum  valituram  concedimus  et  impert- 
imur;  attestantes  te  esse  sacerdotem  bonis  moribus 
imbutuni  et  ab  hac  nostra  di(]ecesi  abire  nulla  cen- 
sura  ecclesiastica  neque  alio  canonico  impedimento 
aut  poena,  quod  sciamus,  irretitum.  Quare  omnes  ad 
quos  declinabis,  pra^sertim  in  Christo  PP.  IHmos 
et  RevE25  Episcopos  aliosque  ecclesiarum  niinistros 
et  officiales  rog^amus,  ut  ad  sacrificiuni  missa3 
celebrandum  et  ad  alia  divina  officia  exercenda 
admittant  et  in  cuuctis  faveant  ac  tueantur.  In 
quorum  fidem  prffisentes  litteras  manu  nostra  sig"- 
natas  sigilloque  nostro  munitas  exarari  jussimus. 
Datum  &c. 

[l.  s.]  N.  Kpiscopus  N. 

N.  N.  Cancellarius  Episcopalis." 

213.  Following"  is   a  form  of  commendation  for  a 
priest  living  away  from  his  diocese  with  permission: 

"N.  Episcopus  N.  Dilecto  Nobis  in  Christo  Revdo 
N.  N.  Tibi  qui  nullum  officium  nee  beneficium  quod 
residentiam  requirat  in  hac  dioecesi  possides  et  a 
nonnuUis  annis  ad  tua  honesta  negotia  peragenda 
(vel  ad  valitudinem  conservandam)  ab  eadam  cum 
licentia  nostri  prsedecessoris  (vel  nostra)  discessisi; 
modoque  Romam  (vel  Kuropam)  petere  cupis,  prout 
certiores  Nos  fecisti,  obedientia  simul  praestata, 
licentiam  libenter  concedimus  et  in  Domino  imperti- 
mur;  attestantes  te  esse  sacerdotem  bonis  moribus 
imbutum  et  discessisse  ab  hac  dioecesi  nulla  censura 
ecclesiastica  seu  canonico  impedimento  irretitum, 
quod  sciamus,  quominus  sacriiicium  missse  ubique  de 
licentia  Ordinarii  locorum,  et  alia  divina  officia  cele- 
brare  possis.  In  quorum  &c.  Datum  &c. 
[l.  s.]  N.  N.  Episcopus  N. 

N.  N.  Cancellarius." 

214.  It  is  sometimes  necessary  to   certif}^  to   the 
health  or  life  of  a  cleric,  so   that  he   may  resign  in 


206  LEGAL   P'ORMULARY. 

favor  of  another  or  may  continue  drawing-  a  pension 
or  annuity.  The  following"  form  may  be  used  in 
such  and  similar  cases  with  proper  chang-es: 

*  'N.  Episcopus  N.  (sive  vicarius  g-eneralis  N.)  Uni- 
versis  fidem  indubiam  facimus  et  testamur  per  prae- 
sentes  N.  N.  bona  et  iirma  valetudine  praeditum, 
sanum  et  incolumem  vivere  ut  ex  ejus  aspectu  et  col- 
loquio  hodiein  hac  civitatecum  illo  habito  digfnoscere 
potuimus,  et  sic  publice  ab  omnibus  reputari  percipi- 
mus.  Ideo  ad  ejus  instantiam  has  testimoniales  lit- 
teras  nostra  manu  subscriptas  et  sigfillo  munitas 
expediri  jussimus.  Datum  &c. 
[l.  s.  N.  Episcopus  N.  sive  Vicarius  G. 

N.  N.  Cancellarius." 


CHAPTER  VII. 

SACRAMENT   OF    MATRIMONY. 

215.  Matrimony  is  a  sacrament  by  which  a  bap- 
tised man  and  woman  are  leg'ally  united  by  their 
mutual  consent  in  an  indissoluble  marriagfe.  From 
the  very  institution  and  nature  of  this  sacrament  and 
from  the  will  of  Christ  instituting  it,  in  the  marriao;"e 
of  baptised  persons  the  contract  itself  and  the  sac- 
rament are  inseparable.  Hence  the  rig^ht  of  making- 
laws  reg'arding'  the  marriage  of  christians  pertains 
to  the  church  vs^hich  is  the  g*uardian  of  the  sacra- 
ments. The  marriaofe  of  unbaptised  persons  is  not 
subject  to  ecclesiastical  law,  but  is  regulated  by 
the  state.  The  state  may  also  make  for  its  own 
needs  certain  external  regulations  for  the  marriage 
of  christians,  such  as  requiring*  a  license  stating  the 
ages,  occupation  and  other  qualities  of  those  intend- 
ing to  get  married. 

216.  For  the  validity  of  a  marriage  it  is  required 
that  the  parties  be  competent,  that  their  consent  be 
expressed  by  words  of  the  present  tense,  and,  where 
the  decree  ''  Tayiictsf  is  published,  also  before  the 
parish  priest  and  two  witnesses.  {See  notef).  2jj.) 
It  should  be  noted  that  a  marriage  whose  nullity  is 
known  in  the  forum  of  conscience,  cannot  therefore 
be  declared  null  in  the  public  forum.  Neither  can 
the   parties  be  allowed  to  re-marry  so  long  as  the 

207 


208  LEGAL   FORMULARY. 

impediment  of  the  previous  marriag^e  remains  occult 
and  the  nullity  is  not  proved  in  the  external  forum. 
Hence  the  impediment  should  be  made  known  and  a 
public  declaration  of  nullity  obtained. 

217.  For  the  licity  of  marriag-e  it  is  required  that 
usually  the  consent  of  parents  be  obtained,  and  that 
previous  proclamation  of  the  intended  marriag-e  be 
made  three  times  in  the  parish  church  of  the  contract- 
ing- parties.  At  least  one  proclamation  should  be 
made  also  in  those  regfions  and  parishes  in  which  the 
council  of  Trent  has  not  been  published.  ^Cf.  Zitelli, 
Afp.  J.  E.  p.  40J.)  Through  decisions  of  the  Sacred 
Cong-,  of  the  Council,  althoug-h  the  question  of  law 
was  not  decided,  it  follows  from  the  principles  quoted, 
that  the  proclamations  may  be  made  also  on  sup- 
pressed feast-days,  provided  there  is  a  solemn  cele- 
bration and  a  concourse  of  people.  {June  77,  1780; 
Apr.  ig,  182J;  Apr.  7,  1862.) 

The  proclamations  of  the  banns  should  be  made 
only  at  the  request  of  the  contracting  parties  them- 
selves, after  inquiring*  whether  both  freely  consent 
to  the  marriag-e.  Parish  priests  may  not  omit  the 
proclamations  without  the  consent  of  the  ordinary, 
and  bishops  are  admonished  by  Benedict  XIV,  Const. 
Satis  Vobis,  not  to  be  easy  in  remitting  the  procla- 
mations. Nevertheless  when  there  is  a  legitimate 
reason  a  dispensation  not  only  may  but  sometimes 
should  be  given  from  even  all  proclamations.  The 
bishop,  his  vicar  general  and  the  administrator  of  a 
diocese  may  grant  such  dispensation.  A  parish 
priest  may  also  do  so,  when  recourse  to  the  bishop 
cannot  be  had  and  when  at  the  same  time  the  cause 
is  such  and  so  great  that  the  bishop  is  bound  to  grant 


MARRIAGE    IN    CHURCH.  209 

the  dispensation.  Legitimate  reasons  for  dispensa- 
tion are:  Probable  fear  or  suspicion  that  the  mar- 
riage will  be  impeded  maliciously,  or  dan«-er  for 
body,  soul  or  reputation  of  the  contracting^-  parties. 

218.  The  punishment  for  omitting-  the  proclama- 
tion of  the  banns  is  suspension  for  three  years.  This 
however,  is  fercndcc  senteiiticB.  {Cf.  C.  Cum  inJiib- 
itio  dc  ClcDi.  Spo7i.)  "Si  parochialis  sacerdos  tales 
(contrahentes)  sine  denuntiationibus  conjunxerit,  per 
trienniuni  ab  officio  suspendatur."  The  second  pun- 
ishment is  a  penance  for  the  contracting-  parties,  and 
the  third  is  that,  if  a  diriment  impediment  renders 
such  a  marriag-e  null,  the  offspring-  will  be  consid- 
ered illeg-itimate  and  a  dispensation  from  the  impedi- 
ment will  be  obtained  only  with  g-reat  difficulty. 

219.  Matrimony  is  to  be  celebrated  in  the  parish 
church,  not  in  private  oratories  and  much  less  in 
private  houses  unless  the  ordinary  g-ives  special  per- 
mission. {S.  Cong.  Propaganda  in  re-ply  to  the 
Archbishop  of  St.  Louis,  Jaii,  i8g8;  Cf.  Monacelli, 
/,  /.  2,f.  2,  n.  7.)  Marriag-e  should  be  celebrated  in 
the  morning-,  not  in  the  evening-,  chiefly  because 
there  should  be  a  nuptial  mass  without  which  the 
special  nuptial  blessing-  cannot  be  g-iven.  This 
blessing-  should  not  be  confounded  with  that  of  the 
Roman  ritual,  which  can  be  g-iven  always.  Further 
it  should  be  noted  that  "althoug-h  spouses  should  be 
exhorted  to  receive  the  nuptial  blessing-  (g-iven  only 
in  mass)  still  the}'  cannot  be  compelled  to  receive  it" 
and  therefore  cannot  be  compelled  to  the  mass.  (6/. 
S.  R.  C.  Sept.  /,  i8j8.)  The  sacrament  of  matri- 
mony should  be  received  in  the  state  of  g-race,  and 
the    parties  should  receive  holy  communion    during* 

28 


210  LEGAL    FORMULARY. 

the  nuptial  mass.  Reg'arding'  the  ttiarria«*e  of  those 
who  are  notoriously  under  censure  of  the  church, 
such  for  instance  as  belong"  to  condemned  societies, 
according-  to  an  instruction  of  the  Sacred  Peniten- 
tiary, Dec.  10,  1860,  the  pastor  should  strive  to  get 
the  party  to  become  reconciled  with  the  church.  If 
this  is  impossible  and  grave  complications  would 
ensue  unless  the  marriage  were  performed,  the  pastor 
should  consult  the  ordinary  who  after  carefully 
weigfhing  the  circumstances  will  decide  what  had  best 
be  done,  always  excluding  the  celebration  of   mass. 

220.  It  is  a  dog"nia  of  catholic  faith  that  lawful 
and  consummated  marriag^e  cannot  be  dissolved  ex- 
cept by  the  death  of  one  or  the  other  party.  Even 
adultery  is  not  a  cause  for  full  divorce,  though  it  is 
a  sufficient  reason  for  perpetual  separation  without 
the  re-marriage  of  either  party.  A  separation  may 
also  be  licit  by  mutual  consent  for  reasons  of  greater 
perfection  when  one  or  both  parties  enter  religion. 
Another  cause  is  heresy  or  apostacy  from  the  faith 
and  a  fourth  cause  is  any  g^rave  dang^er  for  soul  or 
body,  so  long'  as  such  danger  lasts.  In  all  such 
cases  the  ecclesiastical  judg-e  should  be  consulted 
and  a  declaration  obtained. 

221.  There  are  some  impediments  which  render 
marriage  illicit,  though  not  invalid.  A  simple  vow 
of  chastity  taken  either  in  a  religious  community  or 
privately,  unless  a  dispensation  is  previously  ob- 
tained, renders  the  contracting"  party,  thus  impeded, 
guilty  of  mortal  sin.  The  simple  vows  taken  by 
members  of  the  Society  of  Jesus  render  later  mar- 
riage also  null  as  well  as  illicit. 

Marriag'e  should  not  be  solemnised  during  the  for- 


IMPEDIMENTS    TO    MARRIAGE.  211 

bidden  times,  that  is  from  the  first  Sunday  of  Ad- 
vent to  Epiphany  and  from  Ash  Wednesday  to  the 
octave  of  Easter  inclusively.  Durin*^  these  times 
marriag-e  may  be  celebrated,  but  without  solemnity. 
{Cf.  Benedict  XIV,  lust,  80.)  Sometimes  by  spec- 
ial law  or  custom  the  marriag^e  itself  is  prohibited, 
and  then  permission  for  it  is  required  from  the  ordi- 
nary. During  these  closed  times  the  special  nuptial 
mass  and  blessing-  are  forbidden;  neither  should  there 
be  a  weddingf  feast. 

A  promise  of  raarriao-e  to  another  person  is  an  im- 
pediment prohibiting-  marriag-e  with  anyone  else 
until  proper  dispensation  or  solution  of  the  oblig-a. 
tion  has  been  obtained.  A  special  prohibition,  either 
of  the  bishop  or  the  Roman  Pontiff  while  a  supposed 
impediment  is  being-  investig-ated  or  for  some  other 
cause,  is  also  a  prohibiting-  impediment. 

222.  The  impediment  of  mixed  relig-ion  is  a  prohi- 
bition of  marriag-e  between  catholics  and  baptised 
persons  who  are  not  catholics.  If  the  non-catholic 
party  is  not  even  baptised  then  the  impediment  be- 
comes also  a  diriment  one,  and  is  called  "disparity  of 
worship."  The  church  has  always  been  opposed  to 
these  marriag-es  because  of  the  dang-er  of  perversion 
for  the  catholic  party  and  the  children  and  because 
of  the  communion  of  catholics  with  heretics  or 
schismatics  in  sacred  thing's.  Only  the  Roman  Pon- 
tiff for  a  g-rave  reason  can  dispense  in  these  mar- 
riag-es. When  a  catholic  asks  for  a  dispensation  to 
marry  a  non-catholic  the  ordinary  should  endeavor 
to  procure  the  conversion  of  the  non-catholic  party, 
or  dissuade  the  catholic  from  the  marriage.  If  this 
is  not  possible  and  if  there  are  just  reasons  for  dispen- 


212  le:gal  formulary. 

sation,  or  a  well-grounded  fear  of  a  civil  marriag^e, 
then,  if  the  ordinary  has  an  apostolic  indult,  as  our 
bishops  have,  he  may  g^rant  a  dispensation,  provided 
there  is  no  fear  of  perversion  for  the  catholic  party, 
and  provided  the  non-catholic  party  sigfn  and  intend 
to  keep  promises,  that  1^  he  will  not  interfere  with 
the  relig"ion  of  the  catholic  party,  2°  that  all  children 
born  of  the  marriag'e  shall  be  broug"ht  up  catholics. 
The  catholic  party  should  also  ag"ree  to  work  for  the 
conversion  of  the  non-catholic  to  the  true  faith.  - 

These  marriag*es  are  to  be  celebrated  not  in  the 
church  but  in  the  parochial  rectory,  and  the  priest  is 
not  allowed  to  use  any  sacred  vestments,  nor  g-ive 
the  nuptial  blessing*.  In  special  cases  where  g^raver 
dang^ers  are  feared  from  a  refusal,  the  ordinary  may 
allow  the  priest  to  use  the  usual  form  of  the  Ritual 
for  marriag'e,  but  always  excluding*  the  celebration  of 
mass.      \Cf.  Piitzer  Comvient.  in  Facilitates^  n,  21  g.) 

223.  The  diriment  impediments  which  render  mar- 
riag*e  null  are  induced  either  by  natural  or  divine 
law  or  by  ecclesiastical  law.  All,  even  unbaptized 
persons,  are  bound  by  impediments  of  natural  or  divine 
law;  only  baptised  persons  are  bound  by  those  of 
ecclesiastical  orig"in.  Heretics  are  bound  by  these 
impediments  even  that  of  clandestiny,  except  where 
in  certain  circumstances  they  are  declared  free  there- 
from. 

Defective  consent  is  a  diriment  impediment.  Con- 
sent may  be  defective  because  of  a  substantial  ante- 
cedent or  concomitant  error  reg^arding*  the  person, 
but  not  reg^arding-  the  qualificatious  of  the  spouse. 
This  impediment  is  founded  on  natural  law. 

A  eonditio)i  of  slavery  in  which  one  or  both  con- 


IMPEDIMENTS   TO   MARRIAGE.  213 

tracting-  parties  exist  unknown  to  the  other,  is  a 
diriment  impediment.  This  impediment  does  not 
affect  the  person  substantially,  but  only  accidentally 
and  is  therefore  of  ecclesiastical  not  natural  law. 

The  impediment  oi  force  or  fear  is  present  when 
the  fear  is  great  and  produced  by  a  free  cause,  un- 
justly inducincr  it  in  order  to  extort  marriag-e.  It 
seems  a  very  difficult  impediment  to  prove  leo-ally. 

224.  The  impediment  of  abduction  is  the  violent 
carrying-  away  of  a  woman  for  the  sake  of  marr3'ino;- 
her.  For  this  impediment  to  exist  it  is  necessary 
that  the  woman  be  really  abducted  or  transferred 
from  one  place  to  another,  that  she  be  unwillino-  and 
that  the  abduction  be  made  for  the  reason  of  marry- 
ing- her.  This  impediment  endures  so  long-  as  the 
woman  is  in  the  power  of  the  abductor.  Excommu- 
nication is  inflicted  on  abductors  of  women  and  they 
become  perpetually  infamous  as  well  as  all  who 
assist  in  the  abduction.  It  matters  not  whether  the 
woman  be  a  virsfin  or  a  widow,  whether  of  o'ood  or 
bad  morals,  provided  she  be  abducted  for  the  cause 
of  marriag-e. 

225.  Immature  «^^  is  a  diriment  impediment  of 
ecclesiastical  orig-in.  Males  must  be  fourteen  and 
females  twelve  years  of  ag-e  before  marriag-e  can  be 
leg-ally  contracted,  unless  wickedness  has  supplied 
for  defective  ag-e.  Insanity  is  also  an  impediment 
because  of  w^ant  of  free  will. 

Perpetual  impotence  before  marriag-e  is  a  diriment 
impediment  founded  on  natural  law,  especiall}'  if 
impotence  is  absolute.  In  matrimonial  cases  reg"ard- 
ing-  this  impediment  the  various  prescribed  solemnities 
must  be  exactly  followed,  as  found  in  the  instruction 


214  LEGAL    J'ORMULARY. 

of  the  Propag"anda,  {Causa'  Matr.  i88^,  71.46,)  and 
the  impotence  must  be  fulh^  shown.  {Cf.  Feije 
De  Ivipcd.  Mat.  c.  24.) 

226.  The  defect  of  liberty  or  the  boi?d  of  a  -prior 
viarriag'e  is  a  diriment  impediment  to  a  subsequent 
marriagfe;  but  it  is  required  that  the  prior  marriag'e 
be  validly  contracted  and  that  it  still  exist.  A  mar- 
riag'e once  validly  contracted  ceases  to  exist  by  the 
death  of  one  or  the  other  part3^  Among-  baptised 
persons,  a  marriage  which  is  validly  contracted  in- 
deed, but  not  yet  consummated,  also  ceases  by  papal 
dispensation  a  viatrimonio  rato  ct  non  consuinmato, 
and  by  the  solemn  vows  made  by  one  of  the  spouses 
in  a  relig-ious  order.  Among'  unbaptised  persons, 
when  marriag'e  has  been  validly  contracted  and  even 
consummated,  and  one  party  becomes  converted  to 
the  catholic  faith  and  the  other  refuses  to  live  with 
the  converted  party  without  contumely  of  the  Crea- 
tor, the  convert,  using"  the  Pauline  privileg^e,  may 
contract  marriag'e  with  a  catholic  and  the  former 
marriag'e  becomes  dissolved  b}^  the  latter.  To  pre- 
vent complications  a  civil  divorce  should  be  obtained 
under  direction  of  the  ordinary.  The  interpellation 
of  the  infidel  spouse  should  be  made  in  reg'ular  form 
whenever  possible.  When  not  possible  an  apostolic 
dispensation  may  be  granted,  for  which  some  bishops 
have  an  indult;  but  in  such  case  a  summary  of  the  facts 
showing'  the  impossibility  of  interpellation  tshould 
previously  be  made  and  preserved,  and  a  minute 
thereof  entered  in  the  marriag'e  record. 

227.  The  impediment  of  crime  is  of  ecclesiastical 
orig-in  for  the  protection  of  married  life.  In  order  to 
remove  temptation,  the  church    invalidates  marriage 


IMPEDIMENTS    TO    MARRIAGE.  215 

between  partners  in  certain  crimes,  adultery  and 
murder,  which  are  committed  with  a  view  of  break- 
ing' up  an  existing-  marriag"e  and  contracting"  a  new 
one.  Also  in  order  that  marriag-e  may  always  be 
proved  and  may  not  be  kept  secret  the  impediment  of 
clandcstinity  was  decreed  by  the  council  of  Trent. 
Where  this  decree,  called  ''  Tamctsi,''  has  been  pub- 
lished, the  marriage  of  baptised  persons  must  be  cel- 
ebrated before  their  parish  priest  and  two  witnesses, 
otherwise  it  is  declared  null  and  invalid.  ^See  note 
p.  2JJ.)  The  Holy  See  has  made  special  declarations 
regfarding"  heretics  who  d\vell  in  countries  where 
the  decree  has  been  published. 

228.  Relationship  is  a  diriment  impediment  and  it 
has  various  forms.  Natural  or  carnal  relationship 
prohibits  marriag^e  in  the  direct  line  indefinitely  and 
collaterally  to  the  fourth  deg-ree.  Spiritual  relation- 
ship arising-  on  account  of  the  sacraments  of  baptism 
and  confirmation,  prohibits  marriage  between  the 
person  who  baptises  or  the  sponsors  on  the  one 
side,  and  the  person  baptised  or  confirmed  or  his 
father  or  mother  on  the  other.  Relationship  by  mar- 
riag-e, called  affinity,  prohibits  and  dissolves  marriag-e 
betw^een  the  husband  and  the  relatives  of  his  wife  to 
the  fourth  collateral  deg-ree,  and  between  the  wife 
and  the  relatives  of  her  husband  also  to  the  fourth 
deg-ree  collaterally.  In  the  direct  line  the  impedi- 
ment extends  indefinitely.  In  cases  of  illicit  or  extra- 
matrimonial  intercourse  affinity  impedes  marriag-e  to 
the  second  collateral  deg-ree,  and  indefinitely  in  the 
direct  line. 

229.  Public  ho)iesty  is  an  impediment  arising-  from 
absolute  or  valid  espousals  or  betrothal  and  annuls 


216  LEGAEv   FORMULARY. 

marriage  between  the  man  and  the  relatives  of  the 
woman,  and  vice  versa,  to  the  first  deg'ree  for  a  be- 
trothal, but  for  a  ratified  marriag*e  to  the  fourth  de- 
gree included.     It  is  entirely  of  ecclesiastical  orio-in. 

Another  impediment,  also  of  ecclesiastical  origin, 
is  a  sacred  order,  which,  especially  since  the  council 
of  Trent,  prohibits  marriage  under  pain  of  nullity, 
without  however  dissolving  it  if  already  contracted. 

SolenDi  vozus  taken  in  a  religious  order  either  by 
a  man  or  a  v^oman  are  a  diriment  impediment  to  sub- 
sequent marriage,  and  also  annul  a  previously  con- 
tracted marriage  if  unconsummated. 

For  an  extended  treatment  of  the  various  impedi- 
ments special  treatises  should  be  consulted.  The 
bishops  of  the  United  States  have  extensive  facul- 
ties from  the  Holy  See  for  dispensing  in  matrimonial 
impediments.  A  list  of  these  faculties  is  given  in 
the  following  chapter.  Some  forms  useful  in  matri- 
monial cases  are  given  below. 

230.   Testimonial  letters  showing  freedom  to  marry: 

"N.  E^piscopus  N.  Universis  et  singulis  ad  quos 
praesentes  nostrae  litterse  pervenerint,  fidem  facimus 
et  testamur  N.  N.  de  loco  N.  nunquam  habuisse 
nee  de  pra^senti  habere  virum  (vel  uxorem,J  sed  esse 
in  statu  libero  ad  matrimonium  contrahendum,  prout 
ex  depositionibus  testium,  coram  nostro  vicario  gen- 
erali  medio  eorum  juramento  examinatorum,  plene 
constat.  In  quorum  &c.  Datum  &c. 
[L.  s.]  N.  Episcopus  N. 

N.  N.  Cancellarius  Epis." 

If  the  letter  is  to  certify  only  for  the  time  during 
which  a  person  was  in  the  diocese  these  words  may 
be  used  with  the  above  form:   "attestamur  N.  N.  de 


MARRIAGE    IN    HOUSE.  217 

locoN —  mense  —  anno  —  discessisse  ab  hac  dirjecesi 
in  statu  libero  &c.  " 

231.  Permission  to  contract  marriag'e  durin<:^  the 
forbidden  times  may  be  given  in  the  followinf^  form: 

"N.  EpiscopusN.  &c.  Tibi  N.  N.  parocho  (vel 
presbytero)  ecclesi^e  N.  ut  in  matrimonium  per  verba 
de  pra^senti  in  facie  ecclesia3,  praemissis  in  tribus 
continuis  diebus  festivis  denuntiationibus,  ac  servata 
in  reliquis  forma  in  Rituali  Romano  pra3scripta,  N.  N. 
et  N.  N.  nullo  detecto  ad  contrahendum  impedi- 
mento,  absque  tamen  personarum  comitatu,  omissa- 
que  omnino  benedictione  nuptiali,  necnon  conviviis  et 
aliis  vana3  la3titiae  sig-nis,  conjung^ere  possis,  non 
obstante  tempore  currenti  adventus  (vel  quadragesi- 
mal) justis  de  causis  facultatem  concedimus  et  dis- 
pensamus.  Datum  &c. 
[l.  s.]      N.  N.  Cancell.  E^pis.     N.  Episcopus  N." 

232.  The  bishop  has  an  undoubted  right  to  prohi- 
bit the  celebration  of  marriage  in  a  private  house. 
{Cf.  Monacelli,  /,  t.   8,  f.  ii ;  Reply  of  Propaganda 

Jan.  iSg8,  to  the  Archbishop  of  St.  Loicis.)  But  if 
there  should  be  good  and  sufficient  reasons  the  bishop 
may  grant  permission  to  have  the  ceremonies  of  the 
Roman  Ritual,  not  the  mass,  performed  in  the  home 
of  one  of  the  contracting  parties.  Following  is  a  form : 

"N—  Episcopus  N—  &c.  Tibi,  N.  N.,  parocho 
(vel  presbytero)  ecclesi^  N —  ut  in  matrimonium  per 
verba  de  preesenti  et  servata  forma  in  Rituali  Romano 
pra^scripta,  absque  tamen  benedictione  nuptiali,  et 
dummodo  factse  fuerint  tres  publicationes  in  ecclesia 
diebus  festivis  continuis,  et  nullum  detectum  sit 
impedimentum  ad  contrahendum,  domi  conjungere 
possis  N.  N.  et  N.N.  licentiam  et  facultatem  con- 
cedimus justis  de  causis.  Datum  &c. 
[l.  s.]      '  N.  N.  Cancell.     N.  Episcopus  N." 

29 


218  LEGAIv    FORMULARY. 

In  case  of  a  mixed  marriag^e  this  form  may  be  used: 

"N —  Episcopus  N—  &c.  Tibo  N.  N,  parocho 
(vel  presbytero)  ecclesiae  N —  ut  in  matri.monium  per 
verba  de  pr^senti,  et  servata  forma  in  Rituali  pro 
mixtis  matrimoniis  praescripta,  omissaque  omnino 
missa  cum  benedictione  nuptiali,  dummodo  non  aliud 
impedimentum  detectum  fuerit  quam  disparitatis 
cultus  (mixtae  relio-ionis)  super   quo  vi  facultatum  a 

SS.  Papa  Nostro  N.  die m. anno  Nobis 

ad  quinquennium  concessarum,  jam  dispensavimus, 
domi  conjunjjfere  possis  N.  N.  et  N.  N.  licentiam  et 
facultatem  iustis  de  causis  concedimus.  Datum  &c. 
[l.  s.]  N.  Episcopus  N. 

N.  N.  Cancellarius  Epis." 

233.  When  objection  is  made  to  a  raarriag'e  because 
of  a  previous  betrothal,  the  bishop  having-  examined 
the  objection  and  made  a  judicial  decree  that  it  is 
irrelevant  may  use  the  following*  form: 

"N.  Episcopus  N.  &c.  Tibi  N.  N.  parocho  (vel 
presbytero)  ecclesise  N —  ut  in  matrimonium  per 
verba  de  praesenti  in  facie  ecclesise,  factis  prius  in 
tribus  continuis  diebus  festivis  denuntiationibus,  ac 
in  reliquis  servata  forma  in  Rituali  Romano  prae- 
scripta, N.  N.  et  N.  N.,  nullo  alio  detecto  impedi- 
mento  ad  cdntjahendum,  quam  assertorum  sponsa- 
liuni  cum  N.  N.,  conjungere  possis  facultatem  con- 
cedimus; quoniam  opposita  sponsalia  per  dictam  N. 
N.  non  obstare  censemus.  Datum  &c. 
[l.  s.]  N.  Episcopus  N. 

N.  N., Cancellarius  Episcopalis." 

234.  When  parties  have  obtained  from  the  Holy 
See  a  dispensation,  the  bishop  may  use  this  form  in 
verifying-  it  and  ordering-  its  execution: 

"N.  Episcopus  N.  &c.  Tibi  N.  N.  parocho  (vel 
presbytero)    ecclesiae    N —    ut    in    matrimonium    per 


FORMS   FOR    DISPENSATIONS.  219 

verba  de  praesenti  in  facie  ecclesi^,  prsmissis  in 
tribus  cotitinuis  diebus  festivis  denuntiationibus,  ac 
servata  in  reliquis  forma  in  Rituali  Romano  prad- 
scripta,  nullo  alio  detecto  ad  contrahendum  impedi- 
mento,  quam  primo  affinitatis  ^radu  (vel  alio)  quo 
invicem  sunt  conjuncti,  super  quo  dispensationem 
apostolicam  obtinuerunt,  conjuno-ere  possis  licentiam 
et  facultatem  concedimus;  quoniam  verificatis  coram 
Nobis  expositis  in  dicta  dispensatione,  illam  exequi 
volumus  et  mandamus.  Datum  &c. 
[l.  s.]  N.  Episcopus  N. 

N.  N.  Cancellarius  Episcopalis." 

235.  Followino-  is  a  form  of  interpellation  to  be 
used  before  declaring-  that  the  Pauline  privileg-e  is 
applicable: 

"By  the  commission  and  command  of  the  Most 
Reverend  N.  N.  Bishop  of  N.  and  at  the  request  of 
N.  A.  a  convert  from  infidelit3%  called  before  bap- 
tism N.  B.,  I,  the  undersio-ned  hereby  require,  ask 
and  warn  N.  C.  the  consort  of  the  above  mentioned 
N.  A.  to  express  and  declare  by  word  or  by  authentic 
document  in  (mention  house  and  place)  within  thirty 
days  from  the  date  of  this  notice,  ten  of  which  are 
assig"ned  for  the  first,  ten  for  the  second  and  the  re- 
maining- ten  for  the  third  summons,  whether  or  not 
he  (or  she)  wishes  to  embrace  the  holy  catholic  faith, 
and  with  a  sincere  heart  receive  holy  baptism,  as  his 
(or  her)  consort  has  already  done,  and  as  she  (or  he) 
now  earnestly  asks  him  (or  her)  to  do  for  the  sake  of 
his  (or  her)  soul;  and  she  (or  he)  further  asks  if  he 
(or  she)  does  not  wish  to  embrace  the  true  relig-ion, 
whether  he  (or  she)  is  willing-  peacefuU}'  to  cohabit 
with  the  catholic  consort  without  striving  to  pervert 
her  (or  him)  or  blaspheming-  the  most  hol}^  name  of 
Christ  or' despising-  the  catholic  religfion.  And  if  he 
(or  she)  refuses  to  be  converted,  and  declares  that 
he  (or  she)  will  not  cohabit  peacefully,  the  aforesaid 


220  LEGAIv    FORMULARY. 

consort  will  proceed  to  another  marriag^e  with  a 
catholic,  or  will  enter  reliofion  (or  take  holy  orders) 
as  she  (or  he)  shall  deem  best  for  the  salvation  of 
her  (or  his)  soul.  And  let  the  aforesaid  N.  C.  be 
cited  and  he  is  hereby  considered  cited  at  the  expira- 
tion of  the  said  thirty  days  to  appear  before  this 
curia  to  hear  judg'ment  pronounced  and  any  and 
every  other  necessary  and  opportune  decree  pub- 
lished in  the  premises.  In  testimony  whereof  &c. 
Given  in  the  episcopal  chancery  of  N —  the  —  day  of 
—  A.  D.  — . 

N.  Vicar  General. 
N.  N.  Bishop's  Chancellor." 

If  the  infidel  spouse  cannot  be  found  and  the  above 
citation  cannot  be  served  after  all  dilig-ent  efforts  to 
find  him  have  been  used,  an  application  for  dispensa- 
tion from  the  interpellation  may  be  made  to  the  Holy 
See.  The  bishops  of  Canada  have  this  faculty  in 
their  extraordinary^  faculties,  Form  T. 

236.  Following-  are  some  forms  for  applying  to  a 
bishop  for  dispensations.  Name  of  place  and  date 
should  be  at  beg^inning-  of  application. 

"Most  Reverend  Bishop.  Place  and  Date. 

N.  N.  and  N.  N.  of  this  parish  of  N — ,  throug-h 
the  undersigfued  their  pastor,  humbly  beg*  a  dispen- 
sation from  all  (two)  publications  of  the  banns  of 
marriag-e.  The  reasons  are:  (gfive  canonical  rea- 
sons.) Having-  made  dilig-ent  inquiry  I  find  no  im- 
pediment to  their  marriag-e,  and  I  recommend  g-rant- 
ing-  their  request.  With  much  respect  I  remain, 
Your  Lordship's  obedient  servant, 

N.  Rector  of  N. 
To  Most  Rev.  N.  N.  Bishop  of  N."  ' 

237.  Application  for  dispensation  for  a  mixed 
marriag-e: 


FORMS   FOR    DISPENSATIONS.  221 

"Most  Reverend  Bishop.  Place  and  Date. 

N.  N.  a  catholic  of  this  parish  of  N —  wishing-  to 
marry  N.  N.  a  non-catholic,  throug-h  the  undersio^ned, 
his  (or  her)  pastor,  humbly  beg's  you,  as  deleg^ate  of 
the  Holy  See,  to  gfrant  a  dispensation  from  the  im- 
pediment of  disparity  of  worship  (or  mixed  relig-ion.) 
The  reasons  are:  (g"ive  canonical  reasons.)  N.  N. 
the  non-catholic  party  w^ho  was  never  baptised  (or 

baptised  in   sect)  makes  the  necessary  promises, 

as  shown  by  the  agfreement  sent  herewith.  I  believe 
he  (or  she)  will  keep  them  and  that  there  is  no  extra- 
ordinary dano-er  of  the  perversion  of  the  catholic 
petitioner.  Unavailing"  efforts  have  been  made  to 
dissuade  from  the  marriagfe.  In  the  circumstances 
I  recommend  g-ranting"  the  dispensation.  With  much 
respect  I  remain, 

Your  Lrordship's  obedient  servant, 

N.  Rector  of  N. 
To  Most  Reverend  N.  N.  Bishop  of  N." 

Pollowingf  is  the  form  of  agfreement  to  be  sigfned 
by  the  non-catholic  party  and  forwarded  with  the 
application.  If  the  non-catholic  is  a  Jew  it  must  be 
specially  mentioned  in  the  application;  because  ex- 
cept in  urg'ent  cases  our  bishops  have  no  faculties 
for  such  dispensation.  {Cj .  Extra:  I),  n.  j,  in  fol- 
lozving'  chapter. ) 

"Ag"reement  to  be  sigfned  by  all  non-catholic  appli- 
cants for  dispensation  to  contract  marriagfe  with 
members  of  the  catholic  church. 

I,   the  undersigfned,   not   a  member  of  the  catholic 

church    wishing-  to   contract  marriagfe    with    a 

member  of  the  catholic  church,  propose  to  do  so  with 
the  understanding-  that  the  marriag'e  bond  thus  con- 
tracted is  indissoluable,  except  by  death;  and  I  prom- 
ise   on    mv    word    and     honor,     that    shall    be 

permitted  the  free  exercise  of  relig'ion  according*  to 


222  LEiGAL    E'ORMUIvAKY. 

—  belief,  and  that  all  children  of  either  sex  born  of 
this  marriag'e,  shall  be  baptised  and  educated  in  the 
faith  and  according-  to  the  teaching's  of  the  Roman 
catholic  church.  I  furthermore  promise  that  no 
other  marriag'e  ceremony  than  that  by  the  catholic 
priest  shall  take  place.  iSig^nature.) 

Sig-ned  in  the  presence  of this  —  day  of —  18." 

238.  Following-  is  a  form  for  application  for  dis- 
pensation from  impediments  of  consang-uinity.  The 
same  opening*  and  closing*  phrases  as  above  may  be 
used: 

"N.  N.  and  N.  N.  of  the  parish  of  N —  throug-h 
the  undersigfned,  their  pastor,  humbly  beg-  Your 
Lordship  as  delegfate  of  the  Holy  See,  to  gfrant  them 
a  dispensation  from  the  impediment  of  consangfuinity 
in  the  third  (or  other)  deg-ree  collateral.  The  can- 
onical reasons  are:  Having-  examined  these  reasons 
and  finding-  them  based  on  truth,  I  recommend  g-rant- 
ing-  the  dispensation."     To  be  sig-ned  by  the  rector. 

239.  Form  of  application  in  case  of  affinity: 

"N.  N.  and  N.  N.  of  the  parish  of  N  —  throug-h 
the  undersig'ned,  their  pastor,  humbly  beg-  Your 
Lordship,  as  deleg-ate  of  the  Holy  See,  to  grant  them 
a  dispensation  from  the  impediment  of  affinity  in 
the  (second)  deg-ree collateral,  arising"  from  marriagfe, 
N.'s  first  wife,  now  deceased,  being-  a  (cousin)  of  N. 
whom  he  wishes  to  marry.  The  canonical  reasons 
are:  Finding-  them  based  on  truth  I  recommend  that 
the  dispensation  be  g-ranted." 

In  case  of  affinity  from  illicit  intercourse,  fictitious 
names  should  be  g-iven  in   the  application. 

240.  Form  for  applying-  for  sanatio  i)t  radice: 

"N.  A.  (fictitious)  wishing-  to  validate  his  (or  her) 
marriag-e  with  N.  B.  (fictitious")  through  his  (or  her) 
confessor  humbly   beg-s  Your  Lordship,   as  delegate 


FORMS    FOR    DISPENSATIONS.  "        223 

of  the  Holy  See,  to  grant  a  dispensation  i)i  radice^ 
removing'  the  impediment  of  [affinity  in  the  first  col- 
lateral deg"ree  ex  copula  illicita  with  the  sister  (or 
brother)  of  N.  B.]  which  he  (or  she)  concealed  at  the 
time  of  marriag-e  >vith  N.  B.  who  is  still  ig-norant  of 
it.  The  reasons  for  sanatio  in  radice  are  scandal 
and  dang'er  of  incontinence,  if  separation  is  imposed 
and  the  impossibilit3^  of  obtaining-  N.  B.'s  renewal  of 
consent  without  serious  dang-er  of  present  and  future 
dissensions.  N.  Confessor. 


» » 


241.    FORMULAE    LATINS    AD   POSTULANDAS 

DISPENSATIONES. 

Ad  petendam  dispensationem  in  impedimento 
publico,  super  quo,  juxta  facultates  apostolicas, 
possit  dispensare  Episcopus: 

die m. 18 — . 


"lUustrissime  ac  Reverendissime  Domine. 

Joannes  A  —  et  Anna  B  —  de  parochia  (missione) 
N  hujus  dioecesis  N  —  consang-uinei  in  quarto 
(vel  alio)  g-radu  a^quali  in  linea  transversali,  prout 
ex  annexo  schemate  patet,  matrimonium  secum  inire 
cupiunt,  et  ideo  dispeasationem  sibi  necessariam  ab 
lUustrissima  ac  Reverendissima  Dominatione  Vestra 
tanquam  S.  Sedis  deleg^ato,  suppliciter  efflag-itant. 
Rationes  snnt circumstantise  sunt . 

Summa,  qua  par  est,  reverentia  et  devotione 
permaneo, 

lUustrissime  ac  Reverendissime  Domine, 

Illustrissims  Dominationis  Vestrae 
Submissisimus, 

N.,  Pai'ochiis.'" 

Nota — A  tergo  folii,  seu  infra  textum  supplicis 
libelli,  ponatur  schema  consang-uinitatis  vel  affinitatis. 

242.  Ad  petendam  dispensationem  in  impedimento 
occulto,  super  quo  juxta  facultates  vel  de  jure  dispen- 


224  LEGAL    FORMULARY. 

sare  possit  Kpiscopus,  et  cujus  dispensatio  ab  eo 
sine  periculo  l^dendi  sig*illi  peti  valeat: 

"Illustrissime,  etc.,  ut  supra  241. 

Titius  et  Caja,  vivente  adhuc  prima  Titii  conjug-e, 
carnaliter  se  coofnoverunt,  et  sibi  fidem  invicem 
dederunt  de  matrimonio  inter  se  coiitrahendo,  si 
uxor  Titii  praimoreretur;  qua  modo  mortua,  neutro 
tamen  oratorum  in  ejus  mortem  machinante,  matri- 
monium  inter  se  contrahere  desiderant.  Cum  autem 
impedimentum  criminis  ex  adulterio  et  promissione 
proveniens  sit  occultum,  et,  nisi  matrimonium  inter 
eos  contrahatur,  periculum  immineat  scandalorum 
aut  perseverantia^  in  peccato,  ideo  ad  hddc  evitanda, 
et  pro  conscientise  suse  quiete,  supplicant  humillime, 
ut  Illustrissima  Dominatio  Vestra  g-ratiam  dispen- 
sationis  sibi  clementissime  impertiri  dig'netur. " 

"Sumnia,"  etc.,  ut  241. 

243.  Ad  petendam  dispensationem  ab  Kpiscopo, 
matrimonio  in  bona  fide  cum  impedimento  de  se  pub- 
lico jam  contracto,  et  super  quo,  vi  facultatum  apos- 
tolicarum,  Episcopus  dispensare  possit: 

"Illustrissime,  etc. 

I^xponitur  humiliter  Illustrissima  Dominatione 
Vestrse  pro  parte  devotorum  oratoruin  Joannis  A  — 

et     Anna  B   —    de    parochia hujus    dioecesis, 

quod  ipsi,  alias  ig^norantes  aliquod  impedimentum 
inter  se  existere,  quominus  possent  invicem  matri- 
monialiter  copulari,  matrimonium  inter  se  per  verba 
de  praesenti,  publice  factis  proclamationibus  in  eorum 
parochiali  ecclesia,  nulloque  detectoneque  denuntiato 
impedimento,  contraxerunt,  illudque  in  facie  ecclesia 
solemnizarunt,  et  carnali  copula  consummarunt. 
Postmodum  vero  ad  eorum  pervenit  notitiam,  eos 
(prout  ex  annexo  scliemate  patet)  tertio  et  quarto  a 
communi  stipite  provenientibus  consang-uinitatis 
g^radibus  invicem  esse  conjunctos,  propter  quod  a 
carnali  copula  abstinuerunt   (z'c/,  et  nihilominus  in 


FORMS    FOR    DISPENSATIONS.  225 

eadem  carnali  copula  perstiterunt.)  Cum  autem  ora- 
tores  praedicti  in  hujusmodi  matrimonio  renianere  non 
posslnt  absque  dispensatione,  et,  si  separatio  inter 
eos  fieret,  gravia  exinde  scandala  possent  oriri,  sup- 
plicant, ut,  leg"is  ecclesiasticae  venia  eis  clementissime 
data,  matrimonium  in  facie  ecclesia^  inire,  et  post- 
modum  in  eo  libere  et  licite  vivere  valeant." 
"Summa,"  etc.  ut  supra. 

244.  Ad  petendam  dispensationeni  ab  Episcopo, 
matrimonio  in  mala  fide  cum  impediment©  publico 
jam  contractor 

"Illustrissime,"  etc. 

"Kxponitur  humiliter  Illustrissime  Dominationi 
Vestrae,  nomine  oratorum  Joannis  A  —  et  Anna^  B — 
de  parochia  N  —  hujus  difecesis  N  —  quod  ipsi,  alias 
scientes  se  (ut  ex  annexo  patet  schemate)  secundo 
consan^uinitatis  ^radu  a  communi  stipite  equaliter 
proveniente  invicem  esse  conjunctos,  dispensationeni 
ab  Illustrissima  Dominatione  Vestra  (vel,  ab  Illus- 
trissimo  ac  Reverendissimo  Domino  N — )  ad  valide 
inter  se  matrimonium  contrahendum,  dicto  impedi- 
niento  non  obstante,  postulaverunt;  sed,  repulsam 
passi,  vesana  obcoecati  libidine  ac  circumventi  dia- 
bolica  fraude  coram  ma^istratu  civili  (vel,  praecone 
haeretico)  matrimonium  incestuosum*  contraxerunt, 
ac  consummaverunt,  ex  quo  jam  tres  interea  filii  ab 
ipsis  suscepti  sunt.  Nunc  vero  ex  Dei  (^•ratia  de  per- 
iculo  salutis  seternae  valde  timentes,  niag^no  ob  ante- 
actam  vitam  sunt  commoti  dolore.  Cum  autem,  si 
separatio  inter  eos  fieret,  o^ravia  exinde  scandala 
orirentur,  necnon  magnum  damnum  emer^feret  liberis 
suis,  in  matrimonio  vero  remanere  non  possint  absque 
dispensatione,  supplicant,  ut  Illustrissima  Vestra 
Dominatio  cum  ipsis  dispensare  diofnetur  ut  in  facie 
Ecclesia3,  omissis  tamen  publicis  denuntiationibus, 
matrimonium  invicem,  consensu  renovato,  contrahere, 
ac  in  eo  renianere  libere  et  licite  valeant;  addito  in- 
30 


226  LEGAL    FORMULARY. 

super  ex  parte  infra  sig"ttatt  hoc  tnotivo,  quod,  nisi 
dispensatio  concedatur,  valde  timendum  sit,  ne 
oratores  in  fide  omnino  pervertantur,  et  ab  ea 
deficiant,  una  cum  filiis  susceptis,  cum  inter  acath- 
olicos  et  infideles  deg'ant." 
"Sunima,"  etc. 

245.  Ad  petendam  dispensationem  ab  E^piscopo  in 
impedimento  occulto,  et  quidem  cum  sanatione  mat- 
rimonii in  radice: 

"Illustrissime,"  etc. 

"Sempronia,  dioecesis  N —  igfuara  impedimenti, 
in  facie  ecclesis  et  praemissis  denuntiationibus,  bona 
fide  contraxit  matrimonium  cum  viro,  a  cujus  fratre 
vel  filio)  prius  carnaliter  fuerat  cow'nita.  Quare, 
cum  absque  scandalo  separari  non  possint,  et  pericu- 
lum  incontinentiae  aut  gravis  diffamationis  subsit, 
marito  putativo  impedimenti  plane  inscio,  ac  proinde 
consensus  matrimonialis  nequeat  renovari  absque 
gravi  dissidiorum  periculo,  hinc  supplicat  humiliter 
pro  celeri  remedio  dispensationis  super  hujuscemodi 
impedimento  penitus  occulto,  ac  quidem  in  radice 
matrimonii,  ita  ut,  absque  renovatione  consensus, 
matrimonium  sanari  valeat."  "Sumnia,"  etc. 

246.  Ad  petendem  dispensationem  in  impedimento 
publico,  super  qua  non  possit  dispensare  Episcopus. 

Summatur  Formula  241;  sed: 

1*^  Loco:  "Illustrissime,"  etc.  scribatur:  "Beatis- 
sime  Pater." 

2°  Loco:  "ab  Illustrissima,"  etc.  scribe:  "a  Sanc- 
titate  Vestra." 

3^  Loco  "Summa,"  etc.  scribe:  "Quam  ^ratiam  si 
Sanctitas  Vestra  benig-ne  oratoribus  elargfiri  dig-ne- 
tur,  maximas  pro  ea  g'ratias  summa,  qua  par  est, 
reverentia  ac  devotione  ag^et 

Sanctitati  Vestrae, 

Submissisimus, 
Datum  N-~.  N.  N.,  etc." 


FORMS    FOR    DISPENSATIONS.  227 

Nota. — 1°  Si  sint  pauperes,  post  expositas  rationes 
dicitur:  "Pauperes  et  miserabiles  existunt,  atque 
ex  suis  labore  et  industria  tantum  vivunt." 

2°  Supplicatio  a  parocho  oratorum  confecta  ad 
Episcopum  mittatur;  Episcopus  vero,  vel  loco  ipsius 
Vicarius  Generalis,  earn  testimonio,  sig'illo  et  chiro- 
grapho  episcopali  munltam  Romam  mittet. 

3^'  Si  dispensatio  a  S.  Sede  petenda  sit  in  matri- 
monio  cum  impedimento  publico  sive  bona,  sive  mala 
fide  co)ilracto,  sumatur  Formula  243  vel  244, 
mutatis  mutandis  juxta  ea,  qUcE  in  hac  Formula  246 
mutata  sunt. 

247.  Ad  petendam  dispensationem  a  S.  Poeniten- 
tiaria  in  matrimonio  contrahendo: 

'*Eminentissime  Princeps. 

Exponitur  humillime  E^minentiae  Vestra?,  pro 
parte  oratorum  Titii  et  Cajai,  quod  matrimonium 
contrahere  intendant,  sed  quod  Titius  conjutratus 
Cajam,  vivente  adhuc  propria  uxore  Sempronia, 
carnaliter  cog-noverit  copula  perfecta,  sibique  invi- 
cem  fidem  dederint  de  matrimonio  inter  se  contra- 
hendo, si  Sempronia  uxor  Titii  pra^moreretur,  qua3 
etiam  per  venenum  a  Titio  propinatum  pra^mortua 
est.  Cum  autum  ex  praemissis  impedimentum  cri- 
minis  sit  exortum,  et  exinde  matrimonium  nee  licite, 
nee  valide  contrahere  possint,  supplicant  oratores 
pro  gratia  dispensationis  super  isto  impedimento 
criminis,  ut  publice  matrimonium  inter  se  contra- 
here, et  in  eo  postmodum  licite  et  libere  remanere 
valeant,  prolesque  legitima  decernatur.  Impedi- 
mentum omnino  occultum  est,  et  urget  periculum 
perseverantiai  in  peccato,  quin  etiam  scandali  gravis, 
si  matrimonio  legitime  copulari  nequeant.  Ouare 
pro  quite  conscientiai  sua3,  de  prsemissis  summe  do- 
lentes,  Fminentiam  Vestram  humiliter  supplicant, 
ut  super  his  de  opportune  remedio  auctoritate  Apos- 
tolica  providere  dignetur. 


228  LEGAL    FORMULARY. 

Purpuram  deosculans,  summa,  etc.  Eminentise 
Vestrae  submissisimus — . 

Di^netur  Etninentia  Vestra  responsum  dirig-ere 
ad  me  infra  inscriptutn, — " 

248.  Ad  petendam  dispensationem  a  S.  Poenlten- 
tiaria  in  matrimonio  jam  contracto: 

"Kminentissime  Princeps. 

Titius  conjugatus  Cajam,  vivente  adhuc  propria 
uxore  Sempronia,  carnaliter  cognovit  copula  perfecta, 
sibique  invicem  fidem  dederunt  de  matrimonio  inter 
se  contrahendo,  si  Sempronia  uxor  Titii  pra^morere- 
tur,  ac,  postquam  Sempronia  per  venenum  a  Titio 
propinatum  praemortua  esset,  conscii  fvel  ignari) 
impedimenti  in  facie  ecclesiae  praemissis  (vel  dispen- 
satis)  proclamationibus  (coram  magistratu  civili, 
aut  praecone  haeretico)  matrimonium  contraxerunt 
et  carnali  copula  consummarunt.  (Si  utraque  vel 
alterutra  pars,  in  bona  fide  adhucdum  perseveret,  id 
exprimatur;  item  utrum  utraque  vel  alterutra  pars, 
impedimenti  conscia,  nunc  a  copula  abstineat,  vel  ni- 
hilominus  in  eadem  perstiterit.)  Quare  cum  impedi- 
mentum  ovinino  occultum  sit,  et  separatio  sine  scan- 
dalo  fieri  nequeat,  Eminentiam  Vestram  liumillime 
oro,  ut  dispensationem  eis  benigne  indulgeat,  quate- 
nus  valide  contrahere  possint. 

"Purpuram,"  etc.,  ut  in  Form.  247. 

249.  Practically  the  same  method  is  to  be  used  in 
executing  the  general  faculties,  given  in  chapter 
VIII  following,  as  for  those  granted  by  the  Sacred 
Penitentiary.  If  therefore  a  matrimonial  dispensa- 
tion is  asked,  investigation  will  determine  whether 
it  can  be  granted  by  the  bishop  as  delegate  using  his 
extraordinary  faculties  or  whether  recourse  to  Rome 
is  necessary.  Then  it  must  be  ascertained  whether 
the  applicant  is  a  subject  of  the  bishop,  and  living  in 


FORMS    FOR    DISPENSATIONS.  229 

the  diocese  at  the  time  of  the  execution  of  the  dispen- 
sation (necessary  in  some  cases)  and  whether  there 
is  a  just  cause  for  dispensation.  Then  whether  the 
applicant  is  not  laboring-  under  censure,  such  as  ex- 
communication, which  renders  previous  absolution 
necessary;  whether  a  penance  must  not  be  imposed  as 
required  by  Forms  D  and  E.  The  same  forms  re- 
quire a  cong-ruous  alms  to  be  imposed,  which,  how- 
ever, may  sometimes  be  condoned;  whether  there  is 
not  an  occasion  of  sin  or  scandal  to  be  avoided.  All 
these  matters  should  be  understood,  but  rejifularly 
the  only  requirement  for  the  bishop  is  the  pastor's 
application  giving-  an  exact  and  truthful  exposition 
of  the  case,  since  the  Holy  See  exacts  only  that  the 
exposition  shall  be  true.  The  dispensation  must  be 
executed  entirely  g-ratuitously. 

250.  The  bishop  may  grant  the  dispensations  of 
Form  I,  since  they  are  communicable,  in  the  form  of 
commission  to  the  pastor,  who  will  then  b}^  decree 
g-rant  the  dispensation  jvist  as  a  vicar  g'eneral. 
When  the  parties  apply  directly  to  the  bishop,  if  he 
does  not  know  them  he  cannot  well  g-rant  dispensation 
except  by  referring-  the  petition  for  investig-ation. 

"N.  Episcopus  N. —  Revdo  N —  parocho  in  N. 
salutem  in  Domino.  Oblata^  Nobis  nuper  pro  parte 
devotorum  oratorum  Joannis  A.  et  Mariee  B.  diee- 
cesis  nostras  N —  parochial  N —  petitionis  series  con- 
tinebat;  quod,  cum  (referunt'ur  in  extenso  preces 
oratorum)  dicta  Maria  B.  dotem  habens  minus  com- 
petentem,  et  vig-esimum  quartum  annum  et  ultra 
aetatis  su^e  ag-ens,  virum  paris  conditionis  non  imped- 
itum,  cui  nubere  possit,  non  invenerit,  et  dictus  ora- 
tor dictam  oratriceni  in  uxorem  ducere  intendat,  cup- 
iunt  oratores  praefati  invicem  matrimonialiter  copu- 


230  LEGAL    FORMULARY. 

lari;  sed   quia  tertio   et    quarto    a   communi    stipite 
provenientibus    gradibus    invicem     conjuncti    sunt, 
desiderium  suum   hac  in    parte   adimplere    non  pos- 
sunt  absque  dispensatione.     Quare   Nobis  liumiliter 
supplicari  fecerunt,  quatenus  eisdem  in  praemissis  de 
opportune    dispensationis    remedio    ex     benig-iiitate 
nostra  providere  dignaremur.      Nos  ig"itur,  qui  spec- 
ialem  a  SS.  Domino  nostro  Leone  Papa  XIII,  die — 
mense  —  anno  —  Nobis  ad  quinquennium  o-enerali- 
ter  concessam  facultatem  habemus  tenoris  sequentis; 
"dispensandi  in  3^  et  4^^  consang-uinitatis   et  affinita- 
tis  gradu  simplici  et  mixto   tantum,  et  in  2^,  3°  et  4^ 
mixtis,    non  tamen    in   2°    solo  quoad  futura  matri- 
monia;  quoad   vero   ad   prseterita  etiam    in    2^  solo, 
dummodo  nullo  modo  atting^at  primum  gradum,  cum 
his    qui    ab    heresi   vel    infidelitate  convertuntur  ad 
fidem   catholicam  et  in  praefatis  casibus  prolem  sus- 
ceptam  declarandi  leg^itimam,"  eosdem  Joannem   A. 
et  Mariam  B —  et  eorum   quemlibet  autoritate  apos- 
tolica  Nobis  delegata  a  quibusvis  excommunicationis 
interdicti   aliisque  ecclesiasticis   sententiis,    censuris 
et  poenis  a  jure  vel   ab  homine  quavis  occasione  vel 
causa   latis,    si  quibus   quomodolibet   inriodati   exis- 
tant,   ad  eifectum  duntaxat  praesentium  consequen- 
dum,  harum  serie  absolventes   et  absolutos  fore  cen- 
sentes;  ac  certam  de  praemissis  notitiam  non  habentes, 
hujusmodi  supplicationibus  inclinati,  discretioni  tuae, 
de  qua  in  his  specialem  in  Domino  fiduciam  habemus, 
hisce   auctoritate    apostolica    mandamus,     quatenus 
deposita  per  te  omni  spe  cujuscunque  muneris  aut 
praemii  etiam  sponte  oblati,  a  quo  te  omnino  abstinere 
monemus,  te  de   praemissis  diligenter  informes;  et  si 
per  informationem  eandem  preces  veritate  niti  reper- 
iris,    super    quo  conscientiam    tuam  oneramus,  tunc 
cum  iisdem  Joanne    A.    et    Maria  B.  (dummodo    ilia 
propter  hoc  rapta   non  fuerit,  aut  si  rapta  fuerit,   in 
potestate  raptoris  non  amplius  existat^  ut,   impedi- 
mento  quarti  et  tertii  consang-uinitatis  gradus  hujus- 
modi ac  constitutionibus  et  ordinationibus  apostolicis. 


FORMS    FOR    DISPENSATIONS.  231 

ceterisque  contrariis  nequaquam  obstaiitibus,  matri- 
monium  inter  se  publice  servata  forma  Concilii  Tri- 
dentini  contrahere,  illudque  in  facie  ecclesiae  solemni- 
zare  et  in  eo  postmodum  remanere  libere  et  licite 
valeant,  dispenses  apostolica  auctoritate,  quam  in 
hoc  gfeneraliter  delegatani  habemus  et  tibi  specialiter 
communicamus.  In  quorum  fidem  &c.  Datum  &c. 
[l.  s.]  N.  Episcopus  N. 

N.  Cancellarius  Episcopi." 

251.  In  g-ranting-  the  dispensation  himself  the 
bishop  may  use  the  above  form  by  droppiug-  the 
words  after  "accertam  informationem  non  habentes" 
and  using-  instead: 

"Capta  de  expositis  dilig-enti  informatione  et 
reperta  precum  veritate,  cum  iisdem  Joanne  A —  et 
Maria  B —  (dummodo  ilia  propter  hoc  rapta  non 
fuerit,  aut  si  rapta  fuerit  in  raptoris  potestate  non 
amplius  existat)  ut  impedimento  tertii  et  quarti  con- 
sang-uinitatis  g^radus  non  obstante,  matrimonium  inter 
se  publice  servata  forma  Cone.  Trid.  contrahere,  illud- 
(^ue  in  facie  ecclesia3  solemnizare  et  in  eo  postmodum 
remanere  libere  et  licite  valeant,  pra^fata  auctoritate 
apostolica  harum  litterarum  serie  dispensamus; 
distantiam  vero  tertii  gfradus  pra^dicti  eis  non  ob- 
stare  declaramus  ;  (addatur  si  necesse  est)  prolem 
susceptam,  si  qua  sit  et  suscipiendam  exinde  legiti- 
mam  nunciando.     In  quorum  &c.     Datum  &c. 

N.  Episcopus.   N. 
N.  Cane.  Epis." 

Following-  is  another  form  for  g-ranting-  a  dispen- 
sation in  /oro  extcrno: 

'  'N —  Dei  et  Apostolica?  Sedis  gfratia  Episcopus N — . 
Universis  et  sing-ulis  pn'iisentes  visuris,  Iccturis  et 
audituris  notum  facimus,  quod  N —  et  N —  humillime 
Nobis  supplicaverint  ut  cum  eis  super  impedimento 
tertii   consanguinitatis    g-radus  simplicis  (vel    alius) 


232  LEGAL    FORMULARY. 

quo  impediti  existunt,  dispensare  in  ordine  ad  matri- 
moniuni  leg'itime  coiitrahendum  clenientissime  dig-- 
naremu'rob  causas  canonicas,  nempe,  (dentur  causa3.) 
Nos  igfitur,  qui  a  SS.  Domino  N.  Leone  Papa  XIII 
speciali  facultate  dele»-ata  desuper,  die  —  mensis  — 
anno  —  ad  quinquennium  Nobis  concessa  muniti 
existimus,  prout  invenitur  in  Art.  6°  Pormae  I,  (vel 
alias  inserantur  ipsa  facultatis  verba)  vi  deleg"ats 
Nobis  potestatis  apostolicae  alleo'atae  dictos  oratores 
a  quibusvis  sententiis,  censuris  et  poenis  si  innodati 
existant,  ad  effectum  duntaxat  praesentium  conse- 
quendum  absolventes,  cum  memoratis  N —  et  N — 
ex  causis  pra^fatis  Nobis  co^nitis  et  probatis,  in 
Domino  dispensamus  et  dispensatum  declaramus,  quo 
legitime  matrimonium  inter  se,  non  obstante  supra- 
dicto  impedimento,  servatis  in  reliquo  de  jure  ser- 
vandis,  contrahere  valeant.  (Si  dispensatio  est  ex 
formis  D.  vel  E).  addatur:     "Insuper  eadem  auctori- 

tate  apostolica  illis  injung*imus  ut  eleemosynam 

dollariorum  ad  econonum  nostrum  transmittant  piis 
operibus  applicandam.") 

In  quorum  fidem  praesentes  litteras  manu  nostra 
sig"natas,  sig"illoque  nostro  munitas  et  per  cancell- 
arium  nostrum  subscriptas  expediri  jussimus. 

Datum    in    aedibus    nostris    episcopalibus, , 

die  —  mensis  —  anno  Domini  — . 
[l.  s.]  N.  Episcopus  N. 

N.  Cancellarius  Episc. 

The  omission  of  the  words  "juxta  facultates  ab 
Ap.  Sede  nobis  imperitas"  will  not  render  the  dis- 
pensation invalid.  Still  it  is  ordered  to  insert  either 
the  words  of  the  faculty  or  at  least  that  the  dispen- 
sation is  g-ranted  by  apostolic  deleg^ation,  g-iving-  date 
of  faculties  and  of  their  expiration.  {S.  Cong'. 
Prop.  J,  June,  ^^S3-)  Dispensations  granted  by 
Apostolic  indult  must  be  signed  by  the  bishop  or 
the  vicar  general.      The  mere  filling  in  of  the  bishop's 


FORMS   FOR    DISPENSATIONS.  233 

name  by  the  chancellor  is  useless  and  clearly  illegal. 
The  seal  should  be  affixed  to  every  document  of  dis- 
pensation. 

Following-  is  a  form  for  g-ranting^  a  dispensation 
'pro  foro  interno: 

"N.  Dei  &c  Episcopus  N. 

Committitur  confessario  ex  approbatis  abordinario, 
per  Titium(velaliam  personam)  specialiterdelig^endo, 
potestas  dispensandi  circa  impedimentum  affinitatis 
(criminis  «&c)  cum  uxore  (niarito)  sua  contracta?  ob 
praicedentem  copulam  cum  sorore  (fratre)  ipsius 
habitam;  in  foro  tamen  conscientia^  tantum,  ac  dum- 
modo  impedimentum  sit  occultum.  Injun^atur  vero 
poenitentia  g-raviset  salutaris.  In  quorum  iidem  &c. 
Datum  &c. 
[l.  s.]     N.  Cancellarius  Epis.     N.  Episcopus  N/' 

The  pastor  or  other  executor  may  use  the  follow- 
ing" form  for  executing"  the  dispensation: 

"Auctoritate  apostolica  vi  indulti  RE?  Episcopo 
(archiepiscopo)  ad  quinquennium  a  Sancta  Sede  con- 
cessi  mihique  ad  hoc  communicati,  eg^o  vos  N.  et  N. 
(dummodo  mulier  rapta  non  fuerit  aut  si  rapta  fuerit 
in  potestate  raptoris  non  existat)  absolvo  ab  omnibus 
censuris  et  poenis  ad  eflFectum  praesentium  conse- 
quendum,  atque  dispenso  super  impedimento  —  ita 
ut  leg^itime  matrimonium  contrahere,  in  eoque  post- 
modum  libere  et  licite  remanere  valeatis.  Eadem 
auctoritate  prolem  susceptam,  si  qua  sit,  et  suscip- 
iendam  leg"itimam  declaro.     In  nomine  Patris   &c." 

Note. — Where  the  decree  "Tametsi"  has  been  published  it  is 
certain  that  ''The  faculty  to  administer  all  sacraments  not  re- 
quirin.i?  episcopal  order  does  not  give  also  the  faculty  of  assisting 
at  the  marriage  of  the  faithful  of  the  diocese,"  It  is  also  certain, 
"That  those  marriages  contracted  before  priests  other  than  those 
delegated  by  the  ordinary  or  licensed  by  the  paris/i  j>n'e.st  are  not 
validly  ctmtracted."  Decree  of  Holy  Office,  Sept.  7,  1808,  in  New 
Orleans  Consultation. 

The  places  in  America  where  the  "Tametsi"  has  been  published 
are  given  below  on  page  49J:, 

31 


CHAPTER  VIII. 

FACULTATES    QU^    EPISCOPIS    STATUUM    FCEDERA- 

TORUM   CONCEDI   SOLENT. 

FACULTATES  ORDINARI.E — FORM  I. 

252.  1.  "Conferendi  ordines  extra  tempora  et  non  servatis  inter- 
stitiis  usque  ad  presbyteratum  inclusive  si  sacerdotum  necessitas 
ibi  fuerit." 

2.  "Dispensandi  in  quibuscumque  irregularitatibus,  exceptis  illis, 
quae  vel  ex  bigamia  vera,  vel  ex  liomicidio  voluntario  proveniunt; 
et  in  his  etiam  duobus  casibus,  si  praecisa  necessitas  operariorum 
ibi  fuerit,  si  tameu,  quoad  homicidium  voluntarium,  ex  hujusmodi 
dispensatione  scandalum  non  oriatur." 

3.  "Dispensandi  super  def ectu  aetatis  unius  anni  ob  operariorum 
penuriam,  ut  promoveri  possint  ad  sacerdotium,  si  alias  idonei 
fuerint." 

4.  "Dispensandi  et  commutandi  vota  simplicia  in  alia  pia  opera, 
et  dispensandi  ex  rationabili  causa  in  votis  simplicibus  castitatis 
et  religionis."     (intrandae.) 

5.  "Absolvendi  et  dispensandi  in  quacumque  simonia;  et  in 
reali,  dimissis  beneficiis,  et  super  fructibus  male  perceptis,  in- 
juncta  aliqua  eleemosyua  vel  poenitentia  salutari  arbitrio  dispen- 
santis,  vel  etiam  retentis  beneficiis,  si  fuerint  parochialia  et  non 
sint  qui  parochiis  praeflci  possint." 

6.  "Dispensandi  in  3^  et  4*^  consanguinitatis  et  aflinitatis  gradu 
simplici  et  mixto  tantum,  et  in  2*^,  3^  et  4*="  mixtis,  non  tamen  in  2*" 
solo  quoad  futura  matrimonia  ;  quoad  vero  ad  praeterita  etiam  in 
2*^  solo,  dummodo  nuUo  modo  attiugat  primum  gradum,  cum  his 
qui  ab  haeresi  vel  infidelitate  convertuntur  ad  Pidem  Catholicam, 
et  in  praefatis  casibus  prolem  susceptam  declarandi  legitimam." 

7.  "Dispensandi  super  impedimento  publicae  honestatis  justis 
ex  sponsalibus  proveniente." 

8.  "Dispensandi  super  impedimento  criminis,  neutro  tam^en  con- 
jugum  machinante  et  restituendi  jus  amissum  petendi  debitum." 

9.  "Dis[)ensandi  in  impedimento  cognationis  spiritualis  praeter- 
quam  inter  levautem  et  levatum." 

234 


SPECIAL    FACULTIES.  235 

10.  "Hae  vero  dispensationes  matrimoiiiales  videlicet  6%  7%  8  et 
9'  non  concedantur,  nisi  cum  clausula;  (lunimodo  mulicr  rapt  a  non 
fuerit,  vel  fii  rapid  fiierit,  in  potentate  raptoris  non  exi.sfaf:  et  in  dis- 
pensatione  tenor  hujusmodi  facultatem  inseratur,  cum  expressione 
temporis  ad  quod  fuerint  concessae." 

11.  "Dispensandi  cum  gentilibus  plures  uxores  habentibus,  ut 
post  conversionem  et  baptismum,  quam  ex  illis  maluerint.  si  etiani 
ipsa  fidelis  fiat,  retinere  possint,  nisi  prima  voluerit  converti." 

12.  "Conflciendi  Olea  Sacra  cum  sacerdotibus,  quos  potuerint 
habere,  et,  si  necessitas  urgeat,  etiam  extra  diem  Coenae  Domini.'' 

13.  "Delegandi  simplicibus  sacerdotibus  potestatem  benedicendi 
paramenta  et  alia  utensilia  ad  Sacrificium  Missae  necessaria,  ubi 
non  intervenit  sacra  unctio;  et  reconciliandi  ecclesias  pollutas 
aqua  ab  Episcopo  benedicta,  et  in  casu  necessitatis,  etiam  aqua  noii 
benedicta  ab  Episcopo." 

14.  "Largiendi  ter  in  anno  indulgentiam  plenariam  contritis, 
confessis  ac  sacra  communione  refectis." 

15.  "Absolvendi  ab  haeresi  et  apostasia  a  fide  et  a  schismate 
quoscumque  etiam  ecclesiasticos  tam  saeculares  quam  regulares; 
non  tamen  eos  qui  ex  locis  fuerint  ubi  Sanctum  Officium  exerce- 
tur  nisi  in  locis  missionum,  in  quibus  impune  grassantur  haereses, 
deliquerint,  nee  illos  qui  judicialiter  abjuraverint,  nisi  isti  nati 
sint  ubi  impune  grassantur  haereses,  et  post  judicialem  ab jura- 
tionem  illuc  reversi  in  haeresim  fuerint  relapsi,  et  hos  in  foro 
conscientiae  tantum." 

16.  "Absolvendi  ab  omnibus  censuris  in  Bulla  'ApostoUcae  Seilis 
moderdtioni,'  die  12  Oct.  1869,  Romano  Pontifici  etiam  speciali 
modo  reservatis,  excepta  absolutione  complicis  in  peccato  turpi." 

17.  "Concedeiidi  indulgentiam  plenariam  primo  conversis  ab 
haeresi  atque  etiam  fidelibus  quibuscumque  in  articulo  mortis 
saltem  contritis,  si  confiteri  non  poterunt." 

18.  "Concedendi  indulgentiam  plenariam  in  oratione  10  horarum 
ter  in  anno  indicenda  diebus  episcopo  bene  visis,  contritis  et  con 
fessis  et  sacra  communione  refectis,  si  tamen  ex  concursu  populi 
et  expositione  SSmi.  Sacramenti  nulla  probabilis  suspicio  sit  sac- 
rilegii  ab  haereticis  et  iufidelibus  aut  ottensionis  a  magistratibus." 

19.  "Lucrandi  sibi  easdem  indulgentias." 

20.  "Singulis  feriis  secundis  non  impeditis  officio  IX  lectionum, 
vel  eis  impeditis.  die  immediate  sequenti,  celebrandi  missam 
lie  re(ji(ie,  in  quocumque  altari,  etiam  portatili.  et  liberandi  animas 
secundum  eorum  intentionem  a  purgotorii  poeuis  per  modum 
suttragii." 

21.  "Tenendi  et   legendi,  non  tamen   aliis  concedendi,  praeter- 


236  LEGAL    FORMULARY. 

quam  ad  tempus  tamen  iis  sacerdotibus,  quos  praecipae  idoneos 
atque  honestos  esse  sciat,  libros  prohibitos,  exceptis  operibus 
Dupuy,  Volney,  M.  Reghellini,  Pigault  le  Brun,  De  Potter,  Ben- 
tham,  J.  A.  Dulaure,  Petes  et  Courtisanes  de  la  Grece,  Novelle  di 
Casti,  et  aliis  operibus  de  obscoenis  et  contra  Religionem  ex  pro- 
fesso  tractantibus." 

22.  "Praeflciendi  parochiis  regulares,  eisque  suos  deputandi 
vicarios  in  defectu  saecularium,  de  consensu  tamen  suorum 
superiorum." 

23.  "Celebrandi  bis  in  die,  si  necessitas  urgeat,  ita  tamen  ut  in 
prima  Missa  non  sumpserit  ablutionem, — per  unam  horam  ante 
auroram  et  aliam  post  meridiem, — sine  ministro, — et  sub  dio  et 
sub  terra,  in  loco  tamen  decenti, —  etiamsi  altare  sit  fractum  vel 
sine  reliquiis  sanctorum, — et  praesentibus  haereticis,  schismaticis, 
infldelibus  et  excommunicatis, — si  aliter  celebrari  non  possit. 
Caveat  vero,  ne  praedicta  facultate  seu  dispensatione  celebrandi 
bis  in  die  aliter  quam  ex  gravissimis  causis  et  rarissime  utatur, 
in  quo  graviter  ipsius  conscientia  oneratur.  Quod  si  banc  eandem 
facultatem  alteri  sacerdoti  juxta  potestatem  inferius  apponendam 
communicare,  aut  causa  utendi  alicui,  qui  a  Sancta  Sede  banc 
facultatem  obtinuerit,  approbare  visum  fuerit,  serio  ipsius  con- 
scientiae  injungitur,  ut  paucis  dumtaxat,  iisque  maturioris  pru- 
dentiae  ac  zeli  et  qui  absolute  necessarii  sunt,  nee  pro  quolibet 
loco,  sed  ubi  gravis  necessitas  tulerit,  et  ad  breve  tempus  eamdem 
communicet  aut  respective  causas  approbet." 

24.  "Deferendi  SSmum  Sacramentum  occulte  ad  inflrmos  sine 
lumiue,  illudque  sine  eodem  retinendi  pro  eisdem  iufirmis,  in  loco 
tamen  decenti,  si  ab  haereticis  aut  infldelibus  sit  periculum 
sacrilegii." 

25.  "Induendi  se  vestibus  saecularibus,  si  aliter  vel  transire  ad 
loca  eorum  curae  commissa  vel  in  eis  permanere  non  poterunt." 

26.  "Recitandi  rosarium  vel  alias  preces,  si  breviarium  secum 
deferre  non  poterunt,  vel  divinum  offlcium  ob  aliquod  legitimum 
impedimentum  recitare  non  valeant." 

27.  "Dispensandi,  quando  expedire  videbitur,  super  esu  carnium, 
ovorum  et  lacticiniorum  tempore  jejuniorum  et  Quadragesimae, 
non  tamen  per  generale  indultum  sed  in  casibus  particularibus." 

28.  "Praedictas  facultates  communicandi,  non  tamen  illas,  quae 
requirunt  Ordinem  Episcopalem,  vel  non  sine  Sacrorum  Oleorum 
usu  exercentur,  sacerdotibus  idoneis  qui  in  eorum  dioecesibus 
laborabunt,  et  praesertim  tempore  sui  obitus,  ut,  sede  vacante,  sit 
qui  possit  supplere,  donee  Sedes  Apostolic^a  certior  facta,  quod 
quam  primum  fieri  debebit,  per  delegatos  vel  per  unum  ex  iis  alio 


EXTRAORDINARY    FACULTIKS.  237 

modo  pcovideat,  quibas  delegatis  auctoritate  Apostolica  facultas 
conceditur,  sede  vacante  et  in  casu  necessitatis,  consecrandi 
calicfes,  patenas  et  altaria  portatilia  Sacris  Oleis,  ab  Episcopo 
tamen  benedictis." 

29.  "Et  praedictae  facultates  gratis  et  sine  ulla  mercede  exer- 
ceantur  et  ad  quinquennium  tantum  concessae  intelligantur,  nee 
illis  uti  possit  extra  fines  suae  dioecesis." 

FACULTATES    EXTRAORDINARI/E   C. 

253.  1.  "Recitandi  privatim,  legitima  concurrente  causa,  mat- 
utinum  cum  laudibus  diei  sequentis  statim  elapsis  duabus  horis 
post  meridiem  eamdemque  facultatem  ecclesiasti(ns  viris  sive 
saecularibus,  sive  regularibus  communicandi." 

2.  "Retinendi  ac  legendi  libros  ab  Apostolica  Sede  prohibitos, 
etiam  contra  Religionem  ex  prot'esso  agentes,  ad  ett'ectum  eos  im- 
puguandi;  quos  tamen  diligenter  custodiat  ne  ad  aliorum  manus 
perveniant,  exceptis  astrologicis,  judiciariis,  superstitiosis  ac  ob- 
scoenis  ex  prot'esso;  eamdemque  facultatem  etiam  aliis  conce- 
dendi,  parce  tamen  et  dummodo  prudentur  praesumere  possit 
nullum  eos  ex  hujusmodi  lectione  detrimentum  esse  passuros." 

3.  "Dispensandi  cum  Diaconis  utriusque  cleri  super  defectu 
aetatis  quatuordecim  mensium,  ut  promoveri  possint  ad  Sacer- 
dotium,  si  alias  idonei  fuerint." 

4.  "Permittendi  jutrochis  sibi  subjectis,  dummodo  justa  et 
legitima  causa  concurrat,  ut  lis  diebus  festis,  quibus  fldelos  Apos- 
tolica auctoritate  soluti  sunt  ab  obligationc  missam  audiendi,  ipsi 
ab  applicatione  pro  populo  abstinere  valeant,  dummodo  proeodem 
populo  in  ejusmodi  missa  specialiter  orent." 

5.  "Permittendi  Catholicis  sibi  subjectis,  ut  f  eriis  sextis,  sabbatis, 
aliisque  diebus,  quibus  carnium  esus  vetatur,  acatholicis,  si  in 
eorum  mensa  esse  contigerit,  carnes  praebere  valeant,  dummodo 
tamen  absit  ecclesiasticae  legis  contemptus  et  ejusmodi  t'acultate 
sobrie  multaque  circumspectione  utantur,  ne  scandalum  in 
Catholicos  vel  heterodoxos  ingeratur." 

6.  "Deputandi  aliquem  sacerdotem  in  locis  sibi  subjectis  cum 
facultate  consecrandi  juxta  formam  in  Pontificali  Romano  prae- 
scriptam  calices,  patenas  et  altarium  lapides,  adhibitis  tamen 
Sacris  Oleis  ab  Episcopo  Catholico  benedictis." 

7.  "Impertiendi  quater  in  anno  intra  fines  suae  dioecesis  in  sol 
emnioribus  testis  Benedictionem  Papalem,  juxta  formulam  typis 
impressam  atque  insertam,  cum  indulgentia  plenaria  ab  iis  lucrau- 
da,  qui  vere  poenitentes,  confessi  ac  Sacra  Commuuione  refecti 
eidem  Beuedictioni  interfuerint,  Deumque  pro  Sanctae  Fidei 
propagatione  et  S.  R.  E.  exaltatione  oraverint." 


238  LEGAL    FORMULARY. 

8.  "Declarandi  privilegiatum  in  qualibet  ecclesia  suae  dioecesis 
unum  altare,  dummodo  aliud  privilegiatum  non  adsit,  pro  cunctis 
Missae  Sacrificiis,  quae  in  eodem  altari  celebrabuntur  a  quocun- 
que  presbytero  saeculari  vel  cujuvis  ordinis  regulari," 

9.  "Benedicendi  coronas  precatorias,  cruces,  et  sacra  numismata 
iisque  applicandi  indulgentias  juxta  folium  typis  impressum  atque 
insertum,  necnon  erigendi  Confraternitates  B.  M.  V.  de  Monte 
Carmelo,  SS"'  Rosarii  et  Bonae  Mortis  cum  applicatione  omnium 
indulgentiarum  et  privilegiorum,  quae  Summi  Pontifices  iisdem 
Confraternitatibus  impertiti  sunt;  addita  insuper  potestate  has 
facultates  communicandi  presbyteris  sacro  ministerio  fungen- 
tibus." 

10.  "Erigendi  in  locis  suae  dioecesis,  in  quibus  non  adsint  PP. 
Pranciscales,  pium  exercitium  Viae  Crucis  cum  applicatione 
omnium  indulgentiarum  et  privilegiorum,  quae  Summi  Pontifices 
ejusmodi  exercitium  peragentibus  impertiti  sunt,  addita  insuper 
potestate  banc  facultatem  communicandi  presbyteris  sacro  min- 
isterio fungentibus." 

11.  "Promovendi  Clericos  sibi  subditos  ad  Subdiaconatum  alios- 
que  Ordines  Majores  usque  ad  Presbyteratum  inclusive  titulo 
missionis,  praestito  tamen  ab  eisdem  Clericis  juramentoantequam 
Subdiaconi  ordinentur,  quo  spondeant,  ad  instar  Pontiflciorum 
alumnorum,  suae  dioecesi  vel  missioni  se  esse  perpetuo 
inservituros." 

12.  "Delegandi  benedictionem  campanarum,  quandocumque  eam 
ipsi  absque  gravi  incommodo  perficere  nequeant,  sacerdotibus  sibi 
bene  visis,  servato  ritu  Pontificalis  Romani,  atque  adhibitis  Oleis 
et  aqua  ab  Episcopo  benedictis;  necnon  sine  aqua  ab  Episcopo 
benedicta,  si  gravis  causa  concurrat." 

13.  "Et  praedictae  facultates  gratis  et  sine  uUa  mercede  excer- 
ceantur,  nee  illis  uti  possit  extra  fines  suae  dioecesis." 

FACULTATES    EXTRAORDINARI^    D. 

254.  1.  "Dispensandi  super  impedimento  cognationis  spiritualis 
inter  levantem  et  levatum." 

2.  "Dispensandi  in  casibus  occultis  et  in  foro  conscientiae  tan- 
tum  super  primo  et  secundo  gradu  simplici  et  mixto  affinitatis  ex 
copula  illicita  provenientis,  in  linea  sive  collaterali  sive  etiam 
recta,  dummodo,  si  de  linea  recta  agatur,  nullum  subsit  dubium 
quod  conjux  possit  esse  proles  ab  altero  contraheutium  genita, 
tam  in  matrimoniis  scienter  vel  ignoranter  contractis  quam  in 
contraheudis." 


EXTRAORDINARY    FACULTIES.  239 

3.  "Dispensandi  cum  snis  svhflifi.s,  super  imperlimento  dispari- 
tatis  cultus,  quatenus  sine  contumelia  Creatoris  tieri  possit,  et 
dummodo  cautum  omniiio  sit  conditiouibus  ab  Ecclesia  prae- 
seriptis  ac  praesertim  de  amovendo  a  Catholico  conjuge  perver- 
sionis  periculo,  deque  conversione  conjugis  infidelis  pro  viribus 
curanda,  ac  de  universa  prole  utriusque  sexus  in  Catholicae  Relig- 
ionis  sanctitate  omniuo  educanda;  servata  in  reliquis  adjecta  in- 
structione  typis  impressa;  excepto  tamen  casu  matrimonii  cum 
viro  vel  muliere  judaeis  nisi  adsit  periculum  in  mora;  tum  vero 
singulis  trienniis  referat  quot  in  casibus  dispensaverit." 

4.  "Dispensandi     cam   .svt/.s    subditis,     super     impedimento     im 
pediente  mixtae  Religion  is,  dummodo  cautum  omnino  sit  condi- 
tiouibus ab  Ecclesia  pi-aescriptis  prout  in  superiori  No.  .3." 

5.  "Dispensandi  in  matrimoniis  mixtis  jam  contractis,  non  item 
in  contraliendis,  super  gradibus  consanguinitatis  et  aftinitatis, 
super  quibus  Apostolicam  facultatem  pro  Catholicis  jamobtinuit, 
quatenus  pars  Catholica,  praevia  absolutioue  ab  incestus  reatu  et 
censuris.  cum  parte  acatholica  rite  et  legitime  matrimonium  con- 
trahere  de  novo  possit,  prolemque  susceptam  ac  suscipieudam 
legitimam  declarandi  dummodo  cautum  omnino  sit  conditiouibus 
ab  Ecclesia  praescriptis  prout  in  sup.  No.  3." 

6.  "Sanandi  in  radice  matrimonia  contracta,  quando  comperitur 
adfuisse  impedimentum  dirimens  super  quo  ex  Apostolicae  Sedis 
indulto  dispensare  ipse  possit,  magnumque  fore  iucommodum  re- 
quirendi  a  parte  innoxia  renovationem  consensus,  monita  tamen 
parte  conscia  impediment!  de  effectu  hujus  sanationis." 

7.  "Absolvendi  contrahentes  in  omnibus  et  singulis  casibus 
supra  expositis,  dummodo  opus  sit,  ab  incestus  reatibus  et  cen- 
suris, imposita  pro  modo  culparum  congrua  poeniteutia  salutari, 
prolemque  susceptam  ac  suscipieudam  legitimam  declarandi," 

8.  "Subdelegandi  praesentes  facultates  suo  Vicario  Generali, 
quoties  absit  a  residentia  vel  legitime  sit  impeditus,  atque  duobus 
vel  tribus  presbyteris  sibi  benevisis  in  locisremotioribus  propriae 
dioecesis,  pro  aliquo  tamen  numero  casuum  urgentiorum,  in 
quibus  recursus  ad  ipsum  haberi  non  possit." 

"Voluit  autem  Sanctitas  Sua  et  omnino  praecepit  ut  praedictus 
Episcopus  superioribus  facultatibus  justis  dumtaxat  gravibusque 
accedentibus  causis  et  gratis  utatur,  injuncta  tamen  aliqua  con- 
grua eleemosyna,  in  pium  opus  arbitrio  ipsius  Episcopi  eroganda. 
atque  ut,  elapso  (luinqueniiio  de  singulis  dispensationibus  concessis 
certiorare  debeat  Apostolicam  Sedem." 

FACULTATES   EXTRAORDINARLE   E. 

255.  "Dispensandi  in  utroque  foro  cum  Catholicis  ejus  jurisdic- 


240  IvEGAIv    FORMULARY. 

tioni  subjectis,  in  matriinoniis  sive  contractis  sive  contrahendis , 
super  sequentibus  impedimentis:" 

1.  "Super  impedimento  primi  gradus  attinitatis  in  linea  col- 
laterali  ex  copula  licita  provenientis." 

2.  "Super  impedimento  seoundi  gradus  consanguinitatis  vel 
aflfinitatis  admixti  cum  primo  in  linea  transversali." 

3.  "Super  impedimento  secundi  gradus  consanguinitatis  vel 
affinitatis  in  linea  transversali  aequali." 

4.  "Super  impedimento  publico  primi  gradus  affinitatis,  ex 
copula  illicita  provenientis,  in  linea  sive  collaterali  sive  etiam 
recta,  dummodo  si  de  linea  recta  agatur,  nullum  subsit  dubium 
quod  conjux  sit  proles  ab  altero  contrahentium  genita." 

"Insuper  Sanctitas  Sua  praedicto  Episcopo  facultatem  concessit 
in  omnibus  et  singulis  casibus  superius  expositis  absolvendi  con- 
trahentes,  dummodo  opus  sit,  ab  incestus  reatibus  et  censuris,  im- 
posita  pro  modo  culparum  congrua  poenitentia  salutari  ac  prolem 
tam  susceptam  quam  suscipiendam  legitimam  declarandi," 

"Voluit  autem  eadem  Sanctitas  Sua  ac  omnino  praecepit,  ut 
praed ictus  Episcopus  iisdem  facultatibus  urgentissimis  dumtaxat 
concurrentibus  causis  et  gratis  utatur,  injuncta  tamen  aliqua 
eleemosyna  in  pium  opus  arbitrio  ipsius  Episcopi  eroganda." 

"Tandem  SS"i^Pater  eidem  Episcopo  potestatem  fecit  prae- 
dictas  facultates  subdelegandi  suo  Vicario  Generali  quoties  a 
propria  residentia  absit  vel  sit  legitime  impeditus,  atque  duobus 
vel  tribus  presbyteris  sibi  bene  visis  in  locis  remotioribus  propriae 
dioecesis,  pro  aliquo  tamen  numero  casuum  urgentiorum,  in 
quibus  recursus  ad  ipsum  haberi  non  possit." 

QUADRUPLICIS     IGITUR     GENERIS    SUNT    FACULTATES,     QU^     EPISCOPIS 

NOSTRIS   CONCEDI    SOLENT. 

256.  Facilitates  Ordinariae,  dictae  Formulae  I,  quae  a  caeteris 
distinguuntur  quod,  l'^  omnes,  et  consequenter  etiam  illae  dis- 
pensationes  matrimoniales,  quae  vi  earum  conceduntur,  gratis 
exercendae  sint;  2"  Episcopi  eas  communicare  possint  omnibus 
indiscrimituUbn  "sacerdotibus  idoneis,  qui  in  eorum  dioecesibus 
laborabunt,"  exceptis  tamen,  "quae  requirunt  Ordinem  Episco- 
palem,  vel  non  sine  Sacrorum  Oleorum  usu  exercentur"  et  facul- 
tate  celebrandi  bis  in  die,  quam  "paucis  dumtaxat  —  et  qui  ab- 
solute nocessarii  sint"  subdelegare  valent. 

Facultates  Fxtraordinari.ae,  dictae  C.  Has  quoque  Episcopi 
communicare  possunt  omnibus  hidiscrbninativi  sa(;erdotibiis  in 
eorum  dioecesi  laborantibus,  exceptis  sequentibus:  1^  "Conse- 
crandi   calices,  patenas  et  altarium  lapides  Sacris  Oleis  ab 


FACULTIES   PASS   TO   SUCCESSORS.  241 

Episcopo  Catholico  benedictis,  quam  ad  actum  tantum,  aut  uni 
alterive  saoerdoti  in  locis  sibi  subjectis  delegare  valent,  2*^  Im- 
pertiendi  quater  in  anno  in  solemnioribus  festis  Benedictionem 
Papalem.  3^  "Declarandi  privilegiatum  in  qualibet  ecclesia  suae 
dioecisis  unum  altare,  dummodo  aliud  privilegiatum  non  adsit." 
4^  Benedicendi  campanas,  nisi  quando  "ipsi  absque  gravi  incom- 
modo"  eum  actum  perficere  non  valent,  et  tunc  "servato  ritu  Pon- 
tificalis  Ramani,  atque  adhibitis  Oleis  et  aqua  ab  Episcopo  bene- 
dictis, necnon  sine  aqua  ab  Episcopo  benedicta,  si  gravis  causa 
concurrat." 

Facultates  Extraoi'dinariac,  dictae  D.  Hae  1^  Omncs  ad  dis- 
pensationes  matrimoniales  pertinent.  2^  Subdelegari  possunt 
soli  "Vicario  Generali, "dummodo  Episcopi  "a  jjropria  residentia 
absint  vel  legitime  sint  impediti,  atque  duobus  vel  tribus  pres 
byteris  sibi  benevisis  in  locis  remotioribus  propriae  dioecesis,  pro 
aliquo  tamen  numero  casuum  urgentiorum  in  quibus  recursus 
ad  ipsos  haberi  non  possit."  3'  Justis  dumtaxat  gravibunque 
accedentibus  causis  "exercendae  sunt,  ac  licet  gratis."  4*  "In- 
juncta  tamen  aliqua  congrua"  eleemosyna,  in  pium  opus  arbitrio 
ipsius  Episcopi  eroganda."  5^  "Elapso  quinquennio"  (ad  quod 
concedi  solent)  "de  singulis  dispeusationibus  certiorare"  debent 
Episcopi  ''Apostolicam  Sedem." 

Facultates  Extraordiiiariae^  dictae  E,  Hae  quoque,  1*  Omnes 
ad  dispensationes  matrimoniales  pertinent.  2*^  lis  tantum  sub- 
delegari  valent  quibus  Facultates  Extraordimiriae  D.  3*  Urgcn- 
tissimae  requiruntur  causae.  4*  Servanda  sunt,  quae  servanda 
pracipiuntur  supra  4*^  quoad  Facultates  Extraordinarias  D. 

NoTA. — In  matrimoniis  mixtis,  infidelis,  seu  persona  non-bap- 
tisata,  non  est  subditus  episcopi;  ideoque  non  illi  sed  parti  Catho- 
licae  dispensatio  est  concedenda,  praesertim  si  diversas  incolant 
dioeceses. 

"De  transitu  ad  successores  facultatum  specialium  iiabitual- 
iTER  a  sancta  sede  ordinariis  concessarum,  pro  tempore  et  in 

TERMINIS  CONGESSIONIS. 

Feria  IV,  24  Novembris,  1897. 
In  Cong.  Gen.  S.  Rom.  Univ.  Inquis.  habita  ab  Emis  ac  Rmis 
DD.  Card,  in  rebus  fidei  et  morum  Gen.  Inquisitoribus  iidem  Emi 
Patres,  rerum  temporumque  adjunctis  mature  perpensis,  decer- 
nendum  censuerunt:  Supplicandum  SS'"<^^',  ut  declarare  seu 
statuero  dignotur  facultates  omnes  speciales  habitualiter  a  S. 
Sede  Episcopis  aliorumque  locorum  Ordinariis  concessas  non  sus- 
pendi  vel  desinere  ob  eorum  mortem  vel  a  munere  cessationem , 
'       32 


242  LEGAL    FORMULARY. 

sed  ad  successores  Ordinarios  transire  ad  forman  et  in  terminis 
decreti  a  sup.  hac  Cong,  editi  die  20  Pebraarii,  1888,  quoad  dispen- 
sationes  matrimoniales. 

Insequenti  vero  feria  VI,  die  26  Novembris,  1897,  in  solita  audi- 
entia  R.  P.  D.  Adsessori  S.  O.  impertita,  facta  de  his  omnibus 
SSmo  D.  N.  Leoni  Div.  Prov.  Pp.  XIII  relatione,  Sanctitas 
Sua  Emoruni  Patrum  resolutionem  adprobavit,  atque  ita  per- 
petuis  futuris  temporibus  servandum  mandavit,  contrariis  non 
obstantibus  (luibuscumque. 
[l.  s.]  los.  Cmi.  Mancini,  S.  R.  et  U  I.  Notarius.^^ 

Die  20  Aprilis,  1898,  clausula  "durante  munere"  suppressa  est, 
et  innovata  est  declaratio:  I''  Pacultates  omnes  habituales  in 
posterum  committendas  esse  Ordinariis  locorum.  2*  Appellatione 
Ordinariorum  venire  Episcopos,  administratores  seu  vicarios 
apostolicos,  praelatosseu  praefectos  habentes  jurisdictionem  cum 
territorio  separato,  eorumque  officiales  seu  vicarios  in  spirituali- 
bus  generales,  et  sede  vacante  vicarium  capitularem  vel  legiti- 
mum  administratorem.  Die  vero  23  Junii,  1898,  declaratio  circa 
facultates  concedendas  extensa  est  ad  facultates  jam  anteceden- 
ter  concessas. 

Facultates  habitualUer  concessae,  sunt:  Forma  I,  Extraordinar- 
iae  C,  D,  E,  pro  Statibus  Foederatis.  Aliae  sunt  formae  pro  aliis 
regionibus. 


CHAPTER   IX. 

APOSTOLIC    CONSTITUTION     OF     POPE     LEO    XIII    ON 
THE   PROHIBITION    AND   CENSURE   OF    BOOKS. 

257.  "The  head  and  sum  of  the  duties  and  offices 
which  must  be  most  dilig^ently  and  sacredly  observed 
in  this  apostolic  dig-nity  is  assiduously  to  watch,  and 
with  fullest  stren^-th  to  strive  that  the  integ-rity  of 
christian  faith  and  morals  suffer  no  loss.  And  that, 
more  than  at  any  other,  is  especially  necessary  at 
this  time,  when,  throug-h  the  unbri.dled  license  of 
men's  minds  and  hearts,  almost  every  doctrine  which 
the  savior  of  men,  Jesus  Christ,  delivered  to  the 
keeping"  of  his  church  for  the  salvation  of  the  human 
race  is  daily  called  into  question  and  endangered. 
In  this  strife  against  Christ  certainly  varied  and  in- 
numerable are  the  crafty  and  ingenious  arts  of  his 
enemies;  but  full  of  danger  above  all  others  is  that 
of  intemperate  writing  and  publishing  broadcast 
what  is  written.  For  nothing  more  dangerous  could 
be  imagined  to  corrupt  men's  minds  through  con- 
tempt of  relig-ion  and  their  hearts  through  incentives 
to  sin.  Wherefore  the  church,  the  guardian  and  the 
mediator  set  to  preserve  faith  and  morals,  fearing 
such  great  ill,  very  early  understood  that  she  must 
take  some  remedy  against  this  plague;  and  for  this 
end,  as  far  as  she  could,  has  alwa^^s  striven  to  safe- 
g'uard  men  against  this  terrible  poison,  reading  bad 

243 


244  LEGAL    FOKMULARY. 

books.  The  days  nearest  to  her  founding-  saw  the 
vehement  zeal  of  Blessed  Paul  in  this  matter,  and  so, 
likewise,  has  every  following*  ag^e  witnessed  the  vig"- 
ilance  of  the  holy  fathers,  the  ordinance's  of  bishops 
and  the  decrees  of  councils.  And  especially  it  is  tes- 
tified by  documentary  records  how  vig-ilantly  the 
Roman  Pontiffs  have  gfuarded  ag*ainst  heretical  writ- 
ing's creeping-  in,  to  the  injury  of  the  public.  Anas- 
tasius  I,  by  solemn  edict  condemned  the  more  dan- 
g-erous  writing-s  of  Orig^en;  Innocent  I,  those  of 
Pelag-ius,  and  Leo  the  Great  all  the  books  by  the 
Manicheans.  Well  known  in  this  connection  are  the 
decretal  letters  which  Gelasius  opportunely  issued 
reg-arding-  the  books  which  migfht  and  mio^ht  not  be 
accepted.  And  so  likewise,  as  time  went  on,  did  the 
sentence  of  the  Apostolic  See  pin  down  as  erroneous 
the  pestilent  books  of  the  Monothelites,  of  Abelard, 
of  Massilius  of  Padua,  of  Wickliff,  and  of  Huss. 
But  in  the  fifteenth  century,  when  the  art  of  print- 
ings had  been  discovered,  not  only  was  attention 
directed  ag-ainst  those  evil  books  which  had  already 
seen  the  lig-ht,  but  precautions  were  taken  ag-ainst 
the  issue  of  such  books  in  future.  And,  indeed,  at 
that  period  this  foresig-ht  was  required  not  from  any 
lig-ht  motive,  but  for  the  very  protection  of  virtue 
and  public  safety;  for  not  only  too  many  people  had 
immediately  turned  aside  an  art  in  itself  most  excel- 
lent, the  source  of  thegreatest  blessing's,  and  cal- 
culated to  further  the  social  well-being-  of  the  chris- 
tian world,  into  a  gfreat  weapon  for  ruin;  but  the 
already  g-reat  evil  of  wicked  writing-s  was  made 
g-reater  and  more  rapid  by  the  ease  with  which  they 
could    be  spread   abroad.      Therefore   in   their  most 


NEW   RULES   OF    INDEX.  245 

salutary  wisdom  did  our  predecessors,  both  Alex- 
ander VI  and  Leo  X  decree  certain  enactments,  be- 
fitting* the  moral  requirements  of  their  time,  for  the 
purpose  of  restraining*  within  bounds  the  publishers 
of  those  days. 

258.  But  soon  the  wind  became  a  whirlwind,  and 
•it  was  necessary  to  repress  the  pestilence  of  these 
wicked  heresies  with  more  vig-ilant  sternness.  So 
the  same  Leo  X,  and  afterwards  Clement  VII,  most 
forcibly  decreed  it  to  be  unlawful  to  read  or  to  pos- 
sess the  works  of  Luther.  But  when,  to  the  misery 
of  that  ag'e,  the  impure  swill  of  these  pernicious 
books  had  beyond  bounds  increased  and  crept  into 
every  place,  there  seemed  to  be  need  of  a  remedy  fuller 
and  more  promptly  efficacious.  And  this  remedy  our 
predecessor,  Paul  IV,  at  once  provided  by  issuing-  a 
list  of  books  and  writing's  ag^ainst  which  the  faithful 
were  warned.  And  soon  after,  the  Fathers  of  the 
council  of  Trent  labored  to  restrain  the  increasing- 
license  in  reading*  and  writings  by  a  new  decree.  It 
was  their  will  and  enactment  that  authorities  and 
theologfians  should  be  chosen  for  the  duty  not  alone 
of  increasing*  and  perfecting*  the  Index  which  Paul 
IV  had  issued,  but  of  framing*  rules  to  serve  as  a 
g*uide  for  publishers,  readers  and  users  of  these 
books;  and  to  these  rules  Paul  IV  g*ave  the  force  of 
his  apostolic  recog*nition. 

259.  But  the  very  reason  of  the  public  welfare, 
which  in  the  beg*inning*  had  beg*otten  the  Tridentine 
reg*ulations,  made  chang*es  necessary  in  them  as  time 
went  on.  And  the  Roman  Pontiffs,  Clement  VIII, 
Alexander  VII  and  Benedict  XIV,   prudently  mind- 


246  LEGAL    FORMULARY. 

ful  of  the  needs  of  the  times,  made  several  decrees  to 
develop  them  and  adapt  them  to  the  day. 

Now,  these  things  clearly  show^  that  the  principal 
anxiety  of  the  Roman  Pontiffs  has  ever  been  to  ward 
off  that  twin  pest  and  ruin  of  communities — errors  in 
opinion  and  depravity  in  morals — from  the  civil  and 
social  life  of  men.  Nor  did  energy  fail  to  be  fruit- 
ful so  long"  as  in  this,  the  administration  of  public 
affairs,  God's  eternal  law  expressed  its  rig^ht  to  order 
and  forbid,  and  the  g-overnors  of  commonwealths 
worked  in  unison  with  ecclesiastical  authority. 
E^veryone  knows  what  followed.  When  time  had 
gradually  chang-ed  the  aspect  of  affairs  and  man's 
environment,  the  church,  as  is  her  wont,  prudently 
took  such  steps  as  seemed  most  useful  and  expedient 
to  the  common  weal.  Several  of  the  ordinances  of 
the  Rules  of  the  Index,  which  seemed  no  long'er  op- 
portune, she  either  removed  by  decree,  or,  with  a 
kindliness  equalled  by  its  foresig'ht,  permitted  to  be 
reg"arded  as  obsolete,  in  view  of  the  streng"th  of  cus- 
tom and  use  around  her.     In  quite  recent  times  Pius 

IX,  from  his  pontifical  pre-eminence,  sent  letters  to 
archbishops  and  bishops  in  partial  mitig^ation  of  Rule 

X.  And  as  the  Vatican  council  drew  near  he  g"ave 
the  duty  to  some  learned  men,  chosen  to  prepare 
arg'uments,  to  weig"h  out  and  appreciate  all  the  Index 
rules  and  to  appraise  what  should  be  done  with  them. 
They  unanimously  decided  that  they  oug-ht  to  be 
chang-ed  and  several  of  the  Fathers  openly  professsd 
their  ag^reement  with  this  decision  and  asked  the 
council  to  ratify  it.  On  this  point  letters  are  extant 
from  French  bishops  expressing-  the  opinion  that  it 
was  necessary  and  too  urg-ent  to  be  delayed   "to  put 


NEW    RULES   OF    INDEX.  247 

the  rules  and  the  whole  Index  upon  a  basis  better 
adapted  to  the  ao^e  and  easier  to  observe."  And  the 
same  opinion  was  held  by  the  German  bishops,  who 
asked  that  the  "Rules of  the  Index  .  .  .  should 
be  submitted  to  a  new  revision  and  be  edited  afresh." 
And  many  bishops  from  Italy  and  the  other  countries 
were  of  the  same  mind.  And  these  all,  if  we  keep 
in  view  the  state  of  the  times,  of  civil  enactments, 
of  popular  usag'es,  make  a  just  request,  and  one  in 
accord  with  the  maternal  charity  of  holy  church. 
For  in  the  rapid  march  of  minds  there  is  no  field  of 
knowledge  in  which  literature  does  not  too  boldly 
wander;  whence  comes  the  daily  «flut  of  pestilent 
books.  And  what  is  sadder  still  is  that  amid  this 
g"reat  evil  the  public  laws  are  not  only  conniving', 
but  allowinof  g'reat  license.  Hence,  on  the  one  hand, 
the  minds  of  so  many  are  loosed  from  relig"ion,  and 
on  the  other  such  perfect  impunity  of  reading"  with- 
out restraint  w^hatever  issues  from  the  press. 
Wherefore,  bent  on  remedying"  these  troubles,  We 
have  considered  two  thing's  feasible,  from  which  all 
may  g'ather  a  certain  and  clear  rule  of  action  in  this 
matter.  First,  that  the  Index  of  books  unfit  to  be 
read  should  be  most  diligfently  re-examined,  and, 
when  this  is  done,  should  be  published.  Secondly, 
We  have  considered  the  rules  and  have  decreed, 
while  preserving'  them  in  substance,  to  make  them 
easier,  so  that  anyone,  unless  he  be  of  evil  mind,  will 
not  find  it  hard  or  troublesome  to  obey  them.  In 
this  not  only  are  We  follow^ing-  the  example  of  our 
predecessors,  but  We  are  imitating-  the  maternal 
zeal  of  the  church,  which  desires  nothing'  so  deeply 
as  to  show  herself  kind,  and  has  so  w^atched  over  and 


248  LEGAIv   FORMULARY. 

still    watches  over  her  ailing-  children   that  she  may 
with  zealous  love  be  sparing  to  their  weakness. 

260.  Whence,  after  mature  consideration  with  the 
cardinals  of  holy  church  who  belong-  to  the  Sacred 
Council  of  the  Index,  We  have  decided  to  issue  the 
g-eneral  decrees  w^hich  are  written  below  and  are 
conjoined  with  this  constitution;  which  rules  alone 
are  to  be  used  by  the  said  sacred  council,  and  to  be 
religiously  obeyed  by  catholics  throughout  the  world. 
We  wish  that  these  alone  be  regarded  as  law  and 
We  abrogate  the  rules  issued  by  order  of  the  holy 
council  of  Trent,  the  observations,  instructions, 
decrees  and  monitions,  and  whatever  else  has  been 
decreed  and  ordered  on  this  matter  by  our  prede- 
cessors, excepting  alone  the  constitution  "SoUicita 
et  Provida"  of  Benedict  XIV,  which  We  decide  to 
leave  in  force,  as  it  now  is  in  force. 

Section  I — The  Prohibition  oj  Books. 

CHAPTER  I. 

THE    FORBIDDEN    BOOKS   OF    APOSTATES,    HERETICS,    SCHISMATICS    AND 

OTHER   WRITERS. 

261.  1.  All  books  which  were  condemned  before 
the  year  1600  by  the  Supreme  Pontiffs  or  by  oecum- 
enical councils,  and  which  are  not  enumerated  in 
this  new  Index,  must  be  considered  condemned  as 
before,  with  those  exceptions  which  are  permitted  by 
these  general  decrees. 

2.  Books  of  apostates,  heretics,  schismatics  and 
all  other  writers  which  defend  heresy  or  schism,  or 
in  any  way  tend  to  overthrow  the  basis  of  religion, 
are  absolutely  forbidden. 

3.  L/ikewise  are  forbidden  books  of  non-catholics 
which  professedly  treat  of  religion,  unless  it  is  known 


PROHIBITION    OF    ROOKS.  249 

that  they  contain  nothing-  contrary  to  catholic  faith. 
4.  Books  of  those  authors  who  do  not  professedly 
treat  of  religion,  but  merely  in  passing  touch  on 
truths  of  faith,  are  not  to  be  considered  forbidden  by 
ecclesiastical  law  until  they  are  proscribed  by  special 
decree. 

CHAPTER  II. 

THE   EDITIONS    OF   THE  ORIGINAL    TEXTS   OF   HOLY   SCRIPTURE   AND   OF 
VERSIONS   NOT   IN   THE   VULGAR   TONGUE. 

262.  5.  Editions  of  the  orig-inal  text  and  of 
ancient  catholic  versions. of  sacred  scripture,  even  of 
the  oriental  church,  published  by  any  non-catholics, 
even  though  apparently  edited  faithfully  and  integ- 
rally, are  allowed  to  those  only  who  are  engaged  in 
theologfical  or  biblical  studies,  provided,  however, 
no  attack  be  made,  in  the  prefaces  or  notes,  on 
dogmas  of  the  catholic  faith. 

6.  In  the  same  way  and  under  the  same  conditions 
are  allowed  other  versions  of  the  holy  bible  edited 
by  non-catholics,  whether  in  Latin  or  any  other 
classic  lang-uage. 

CHAPTER  III. 

VERSIONS   OF   HOLY   SCRIPTURE   IN   THE   VERNACULAR. 

263.  7.  Since  experience  has  proved  that,  on  ac- 
count of  man's  boldness,  more  evil  than  good  arises 
if  the  sacred  books  are  allowed  to  all  without  check 
in  the  vulgar  tongue;  therefore  all  versions  in  the 
vernacular,  even  though  made  by  catholics,  are  en- 
tirely forbidden  unless  approved  by  the  Holy  See  or 
issued  under  the  care  of  bishops,  with  notes  taken 
from  learned  catholic  writers. 

8.   Prohibited  are  all  versions  of  the  holy  scriptures 

made  by  whatever  non-catholic  writers  in  whatever 
33 


250  IvE;gal  formulary. 

vulg"ar  tong^ue,  and  those  especially  which  are  spread 
broadcast  by  bible  societies,  ag"ain  and  ag-ain  con- 
demned by  the  Roman  Pontiffs,  since  they  entirely 
discard  the  most  salutary  laws  of  the  church  relative 
to  the  issuing-  of  the  divine  books.  But  these  ver- 
sions are  allowed  to  those  who  are  eng^ag^ed  in  theo- 
log*ical  or  biblical  studies  on  observing-  the  reg^ula- 
tions  set  forth  above  in  No.  5. 

CHAPTER    IV. 

INDECENT    ROOKS. 

264.  9.  Books  which  professedly  treat  on,  nar- 
rate, or  teach  lasciviousness  or  obscenity — for  here 
the  question  is  not  one  of  faith  merely,  but  of  morals, 
which  are  easily  corrupted  by  the  reading-  of  such 
books — are  absolutely  prohibited. 

10.  Books,  whether  they  be  of  authors  ancient  or 
modern,  belong-ing-  to  what  are  called  the  classics,  if 
infected  by  this  taint  of  turpitude,  are,  on  account 
of  their  eleg-ance  and  propriety  of  lang-uag-e,  per- 
mitted to  those  only  whose  station  or  teaching*  office 
affords  a  reason;  but  on  no  account,  unless  expur- 
g-ated  with  exceeding"  care,  must  they  be  g-iven  to  or 
read  before  boys  and  youths. 

CHAPTER  V. 

SOME   BOOKS   OF   A   PARTICULAR  KIND. 

265.  11.  Books  detracting-  from  the  reverence  due 
to  God,  the  Blessed  Virg-in,  the  saints,  the  church 
and  its  worship,  the  sacraments  or  the  Apostolic  See, 
are  condemned.  Under  the  same  prohibition  come 
those  works  in  which  the  idea  of  the  inspiration  of 
holy  scripture  is  perverted  or  its  extension  too 
strictly  limited.     Books  in  w^hich  the  ecclesiastical 


PROHIBITION    OF    BOOKS.  251 

hierarchy  or  the  clerical  or  relig-ious  state  is  delib- 
erately assailed  with  opprobrium  are  likewise 
forbidden. 

12.  It  must  be  held  as  unlawful  to  publish,  read  or 
keep  books  in  which  fortune  tellintf,  divination, 
mag^ic,  the  summoning-  of  spirits  and  other  such 
superstitions  are  tauo'ht  or  recommended. 

13.  Books  or  writings  which  tell  of  new  appari- 
tions, revelations,  visions,  prophecies  and  miracles, 
or  which  introduce  new  devotions,  even  under  the 
pretext  that  they  are  private,  are  proscribed  if  the}^ 
are  published  without  due  permission  from  ecclesi- 
astical superiors. 

14.  In  like  manner  are  prohibited  books  which 
uphold  the  lawfulness  of  the  duel,  suicide  or  divorce, 
which  treat  of  the  masonic  sects  and  other  societies 
of  that  kind,  and  maintain  that  these  are  not  bane- 
ful, but  useful  to  the  church  and  civil  society,  and 
which  defend  errors  proscribed  by  the  Hol}^  See. 

CHAPTER  VI. 

SACRED    PICTURES   AND    INDULGENCIES. 

266.  15.  Pictures,  however  printed,  of  our  Lord 
Jesus  Christ,  the  Blessed  Virg-in  Mar3^  the  an^'els 
and  saints,  or  other  servants  of  God,  which  are  not 
in  conformity  with  the  sense  and  decrees  of  the 
church,  are  absolutely  forbidden.  New  ones, 
whether  prayers  be  attached  or  not,  are  not  to  be 
published  without  the  permission  of  the  ecclesiasti- 
cal authorit3\ 

16.  All  persons  are  interdicted  from  publishint>-  in 
any  way  indulg-encies  which  are  apocryphal  and  have 
been   condemned  or  recalled    by    the  Holy  Apostolic 


252  LEGAL    FORMULARY. 

See.     Those  that  have  been  already  published  are  to 
be  withdrawn  from  the  faithful. 

17.  All  books,  epitomes,  pamphlets,  leaflets,  etc., 
recording  orrants  of  indulg*encies  are  not  to  be  pub- 
lished without  license  from  competent  authority. 

CHAPTER  VII. 

LITURGICAL   BOOKS   AND   PRAYER-BOOKS. 

267.  18.  Let  no  one  take  upon  himself  to  make 
any  alteration  in  authentic  editions  of  the  Missal, 
the  Breviary,  the  Ritual,  the  Ceremoniale  Episco- 
porum,  the  Roman  Pontifical,  and  other  liturg-ical 
books  approved  by  the  Holy  Apostolic  See;  in  case 
this  has  been  done,    the  new  editions  are  prohibited. 

19.  No  litanies  except  the  most  ancient  and  the 
ordinary  ones,  which  are  contained  in  the  Breviaries, 
Missals,  the  Pontificals  and  the  Rituals,  the  Lita- 
nies of  the  Blessed  Virofin  which  are  usually  sung*  in 
the  Holy  House  of  Loretto,  and  the  Litanies  of  the 
Holy  Name  of  Jesus  already  approved  by  the  Holy 
See,  are  to  be  published,  without  the  revision  and 
approbation  of  the  Ordinary. 

20.  Let  no  one,  without  license  from  legfitimate 
authority,  publish  books  or  pamphlets  of  prayers, 
devotion,  or  relig"ious,  moral,  ascetic  and  mystic  doc- 
trine and  teaching-,  or  other  books  of  this  kind,  even 
thoug'h  they  may  appear  calculated  to  promote  the 
piety  of  christians;  otherwise  they  are  to  be  deemed 
prohibited. 

CHAPTER  VIIL 

JOURNALS,   LEAFLETS   AND   PERIODICALS. 

268.  21.  Journals,  leaflets  and  periodical  publica- 
tions w^hich  of  set  purpose  attack  relig^ion  and  moral- 


PROHIBITION    OF    BOOKS.  253 

iW  are   to  be    reofarded   as  proscribed   not    onl}^  by 
natural  but  also  by  ecclesiastical  law. 

And  when  necessary  let  the  ordinaries  take  care  to 
warn  the  faithful  opportunely  with  retJfard  to  the 
dano-er  of  such  reading-  and  the  injury  it  causes. 

22.  Let  no  catholic,  especially  no  ecclesiastic, 
publish  an3^thino-  in  journals,  leaflets  or  periodical 
publications  of  this  kind,  except  for  a  just  and  rea- 
sonable cause. 

CHAPTER  IX. 

THE  PERMISSION  TO  READ  AND  KEEP  PROHIBITED  BOOKS. 

269.  23.  Books  condemned  by  special  decrees  or 
by  these  General  Decrees  can  be  read  and  kept  only 
by  such  as  have  received  due  authori/.ation  from  the 
Hol}^  See  or  from  those  to  whom  it  has  deleg*ated  the 
requisite  power. 

24.  The  Roman  Pontiff  set  up  the  Sacred  Congre- 
g"ation  of  the  Index  to  g"rant  licenses  for  reading*  and 
keeping"  whatsoever  books  are  prohibited.  But  both 
the  Supreme  Cong'reg'ation  of  the  Holy  Office  and 
the  Sacred  Cong-reg'ation  of  the  Propag^anda  Fide 
possess  the  same  power  for  the  reg'ions  subject  to 
their  jurisdiction.  This  authority  belong's  likewise 
to  the  Master  of  the  Sacred  Apostolic  Palace,  but 
merely  for  the  city. 

25.  Bishops  and  other  prelates  holding-  quasi- 
episcopal  jurisdiction  can  g^rant  a  license  for  sing-le 
books,  and  only  in  urg'ent  cases.  And  if  they  shall 
have  obtained  from  the  Apostolic  See  the  gfeneral 
power  of  g'ranting  the  faithful  a  license  to  read  and 
keep  prohibited  books,  let  them  g-ive  it  only  in  chosen 
cases  and  for  g*ood  and  reasonable  cause. 

26.  All  who  have  obtained   apostolic  authorization 


254  LEGAL    FORMULARY. 

to  read  and  keep  prohibited  books  are  not  thereb}^ 
empowered  to  read  and  keep  any  books  whatsoever 
or  journals  proscribed  by  the  local  ordinaries,  unless 
the  power  of  readino;  and  keeping-  books  by  whomso- 
ever condemned  be  expressly  ^iven  to  them  in  the 
apostolic  indult.  Moreover,  they  who  have  procured 
a  license  to  read  prohibited  books  must  remember 
that  they  are  bound  by  a  g^rave  precept  to  o-uard 
such  books  so  that  they  may  not  fall  into  the  hands 
of  others. 

CHAPTER  X. 

THE   DENUNCIATION    OF   BAD    BOOKS. 

270.  27.  Althoug-h  it  is  the  duty  of  all  catholics, 
particularly  of  those  eminent  in  learning',  to  denounce 
bad  books  to  the  bishops  or  the  Apostolic  See,  still 
this  duty  belong-s  by  a  special  title  to  nuncios,  dele- 
gfates  apostolic,  local  ordinaries,  and  rectors  of  uni- 
versities which  are  notable  as  seats  of  learning*. 

28.  It  will  be  w^ell  when  denouncing-  bad  books 
not  only  to  indicate  the  title,  but,  also,  as  far  as 
it  can  be  done,  to  explain  the  reasons  for  which  the 
book  is  thoug^ht  deserving*  of  censure.  And  for  those 
to  whom  the  denunciation  is  addressed  it  will  be  a 
sacred  duty  to  keep  secret  the  names  of  the  de- 
nouncers. 

29.  Let  ordinaries  also,  as  deleg^ates  of  the  Apos- 
tolic See,  endeavor  to  proscribe  and  take  out  of  the 
hands  of  the  faithful  bad  books  and  other  pernicious 
writing's  published  or  circulated  in  their  dioceses. 
Let  them  submit  to  the  apostolic  judg'ment  those 
works  or  writing's  which  require  a  closer  examina- 
tion or  for  which  in  order  to  insure  a  salutary  effect. 


CENSORSHIP    OF    BOOKS.  255 

the  decision  of  the  highest  authority  may  appear  to 

be  needed. 

Section  II. —  The  Censor  ship  of  Books. 

CHAPTER  I. 

THE  AUTHORITIES  WHO  HAVE  CHARGE  OF  THE  CENSORSHIP  OF  BOOKS. 

271.  30.  From  what  has  been  laid  down  above 
(No.  7)  it  is  clear  with  whom  lies  the  power  of  ap- 
proving-  or  permittin<*"  editions  and  versions  of  the 
sacred  scriptures. 

31.  Let  no  one  dare  agfain  to  publish  books  which 
have  been  forbidden  by  the  Apostolic  See;  should  an 
exception  appear  admissable  in  any  particular  case 
for  a  g'rave  and  reasonable  cause,  it  is  never  to  be 
made  until  a  license  has  first  been  obtained  from  the 
Sacred  Congreg-ation  of  the  Index  and  the  conditions 
prescribed  by  it  have  been  observed. 

32.  Whatever  pertains  in  an}^  way  to  the  causes  of 
beatification  and  canonization  of  the  servants  of  God 
cannot  be  published  without  the  sanction  of  the 
Sacred  Congreg'ation  of  Rites. 

33.  The  same  is  to  be  said  of  the  collections  of  the 
decrees  of  the  different  Roman  cong reflations;  that  is 
to  say,  these  collections  cannot  be  published  unless 
license  has  previously  been  obtained  and  the  condi- 
tions laid  down  by  the  directors  of  each  cong-reo-ation 
have  been  observed. 

34.  Vicars  apostolic  and  missionaries  apostolic  are 
to  observe  faithfully  the  decrees  of  the  Sacred  Con- 
^reg"ation  of  Propa<;>'anda  with  reg'ard  to  the  publish- 
ing' of  books. 

35.  The  approbation  of  books,  the  censorship  of 
v^'hich  is  not  reserved  by  the  present  decrees  to  the 


256  LEGAL    FORMULARY. 

Holy  See  or  the  Roman  congregations  is  a  matter 
appertaining  to  the  ordinary  of  the  place  at  which 
they  are  published. 

36.  Regulars  are  to  remember  that,  in  addition  to 
the  license  from  the  bishop,  they  are  bound  by  a  de- 
cree of  the  sacred  council  of  Trent  to  obtain  author- 
ization for  the  publication  of  a  book  from  the 
superior  to  whom  they  are  subject.  And  such  per- 
mission is  to  be  printed  at  the  beginning  or  the  end 
of  the  work. 

37.  If  an  author  living  in  Rome  wishes  to  publish 
a  book  elsewhere  than  in  the  city,  no  other  approba- 
tion is  required  but  that  of  the  Cardinal  Vicar  of  the 
city  and  the  Master  of  the  Sacred  Apostolic  Palace. 

CHAPTER  II. 

THE  DUTY  OF  CENSORS  IN  THE  EXAMINATION  OF  BOOKS  BEFORE 

PUBLICATION. 

272.  38.  Let  bishops  to  whose  office  it  belongs  to 
grant  authority  to  print  books  take  care  to  entrust 
the  examination  of  them  to  men  of  approved  piety 
and  learning,  upon  whose  faith  and  integrity  they 
can  rely,  confident  that  they  will  not  be  influenced 
by  favor  or  ill-will,  and  that  all  human  considera- 
tions will  be  put  aside. 

39.  The  censors  are  to  recognize  that  of  the  vari- 
ous opinions  and  views  (according  to  the  injunction 
of  Benedict  XIV)  they  must  judge  with  a  mind  free 
from  all  prejudices.  They  must,  therefore,  discard 
affection  for  any  particular  nation,  family,  school,  or 
institution,  and  put  away  from  them  party  zeal. 
Let  them  keep  before  them  the  dogmas  of  holy 
church  and  the  common  teaching  of  catholics  which 
are  contained  in  the  decrees  of  the  general  councils, 


CENSORSHIP    OF    BOOKS.  257 

the   constitutions  of    the    Roman  Pontiffs,    and    the 
consensus  of  the  doctors  of  the  church. 

40.  On  the  completion  of  the  examination,  if  there 
appears  to  be  nothing-  ag^ainst  the  publication  of  the 
book,  let  the  ordinary  give  the  author  in  writing  and 
entirely  gratis,  permission  for  its  publication  to  be 
printed  at  the  beginning*  or  the  end  of  the  work. 

CHAPTER  III. 

BOOKS  TO   BE   SUB^IITTED    TO   CENSORSUIP   BEFpRE    PUBLICATION. 

273.  41.  All  the  faithful  are  bound  to  submit  to 
ecclesiastical  censorship  before  publication  at  least 
those  books  which  have  reference  to  the  hol}^  scrip- 
tures, sacred  theology,  ecclesiastical  history,  canon 
law,  natural  theology,  ethics  or  other  religious  or 
moral  subjects  of  this  kind,  and  in  general  all  writ- 
ing's specially  concerning  religion  and  morality. 

42.  Let  not  members  of  the  diocesan  clergy  pub- 
lish even  books  treating  of  the  arts  and  purely  nat- 
ural sciences  without  having  consulted  their  ordi- 
naries, so  that  they  may  give  a  proof  of  their  obedi- 
ence towards  them.  They  are  forbidden  to  under- 
take the  directing  of  journals  or  periodical  sheets 
without  first  having  obtained  leave  from  the  ordi- 
naries. 

CHAPTER  IV. 

PRINTERS    AND    PUBLISHERS   OF   BOOKS. 

274.  43.  Let  no  book  subject  to  ecclesiastical  cen- 
sure be  printed  unless  it  bears  at  the  beginning  the 
name  and  surname  both  of  the  author  and  publisher; 
also  the  name  of  the  place  and  the  year  in  which  it  is 
printed  and  published.     If  in  any  case  it  seems  w^ell 

that  the  name  of  the  author  should  be  withheld,  the 
34 


258  LEGAL    FORMULARY. 

power  of   permitting'  this  is  to  lie  with  the  ordinary. 

44.  Printers  and  publishers  of  books  should  bear 
in  mind  that  new  editions  of  a  work  which  has  been 
approved  require  a  fresh  approbation,  and  that  the 
approbation  gfiven  to  the  original  text  does  not  suf- 
fice for  its  translation  into  another  lang-uag^e. 

45.  Books  condemned  by  the  Apostolic  See  must 
be  considered  condemned  everywhere,  no  matter  in- 
to what  languag-e  they  are  translated. 

46.  Let  all  vendors  of  bool^s,  especially  those  who 
rejoice  in  being-  catholics,  neither  sell,  supply  nor 
keep  books  treating  "ex  professo"  of  obscene  mat- 
ters; other  prohibited  books  let  them  not  keep  for 
sale,  unless  they  shall  have  obtained  leave  through 
the  ordinary  from  the  Sacred  Cong-regation  of  the 
Index,  and  let  them  not  sell  them  to  anyone  unless 
in  the  exercise  of  a  wise  discretion  thev  can  form  the 
opinion  that  they  are  lawfully  sought  by  the  pur- 
chaser. 

CHAPTER  V. 

PENALTIES  AGAINST  TRANSGRESSOES  OF  THE  GENERAL  DECREES. 

275.  47.  All  and  everyone  reading,  without  the 
authoris^ation  of  the  Apostolic  See,  the  books  of 
apostates  and  heretics  which  champion  heresy,  also 
the  books  of  any  author  whatsoever  expressly  for- 
bidden by  apostolic  letters,  and  keeping,  printing  or 
in  any  way  defending  those  books,  incur  ipso  facto 
excommunication  specially  reserved  to  the  Roman 
Pontiff. 

48.  Those  who,  without  the  approbation  of  the 
ordinary,  print  or  cause  to  be  printed  the  books  of 
the  sacred  scriptures  or  notes  or  commentaries  upon 


CENSORSHIP    OF    BOOKS.  ^  259 

them  fall    ipso    facto    under    excommunication    un- 
reserved. 

49.  Those  who  shall  have  transg^ressed  in  the 
other  thing's  prescribed  by  these  g^eneral  decrees  are 
to  be  seriously  admonished  by  the  bishop  in  accord- 
ance with  the  degree' of  g*ravity  in  the  transgression; 
and  if  it  shall  appear  fitting-,  let  them  be  restrained 
by  canonical  penalties. 

We  decree  that  this  letter  and  all  that  it  contains 
can  never  be  censured  or  impug^ned  on  the  g^round  of 
its  having-  been  obtained  throug-h  furtiveness  or  sur- 
prise, of  imperfect  intention  on  our  part,  or  of  any 
other  defect  whatsoever,  that  it  ever  shall  be  and 
is  in  force,  and  that  it  should  be  inviolably  observed, 
judicially  and  otherwise,  by  all  persons  of  whatso- 
ever deg-ree  or  pre-eminence,  also  declaring-  null  and 
void  the  action  of  anyone,  by  whom,  with  whatever 
authority  or  under  whatsoever  pretext,  knowingly 
or  unknow^ing-ly,  an3'thing-  different  to  this  should 
happen  to  be  attempted,  everything-  to  the  contrary 
notwithstanding-. 

Moreover,  We  desire  that  copies  of  this  letter, 
even  when  printed — subscribed,  however,  by  a  not- 
ary and  streng-thened  by  the  seal  of  the  ecclesiasti- 
cal dig-nitary — should  have  the  same  credit  as  would 
be  g-iven  to  the  indication  of  Our  Will  on  the  presen- 
tation of  the  present  letter. 

To  no  man,  then,  let  it  be  permitted  to  violate  this 
pag-e  of  our  constitution,  ordinance,  limitation,  re- 
striction and  will,  or  with  rash  daring-  to  g-o  ag-ainst 
what  it  prescribes.  And  if  an3'one  should  presume 
to  do  so,  let    him    know   that   he   will   incur  the  dis- 


260  IvKGAL   FORMULARY. 

pleasure  of  Almig-lity  God  and  the  Blessed  Apostles 
Peter  and  Paul. 

Given  at  St.  Peter's,  Rome,  on  the  25th  of  Febru- 
ary, in  the  year  of  the  Incarnation  of  Our  Lord, 
18%,  the  nineteenth  year  of  Our  Pontificate. 

A.    CARD.    MACCHI. 

A.   PANici,   Subdatarius. 

VISA 
DE    CURIA   I.    DE    AQUIIvA    E    VICECOMITIBUS 

Loco  Plunibi. 

Reg",  in  Secret.  Brevium, 

I.    CUGNONIUS." 


DuBiuM  CIRCA  Revisionem  Librorum. 

In  cong-reg'atione  g^enerali  habita  in  aedibus  Vati- 
canis  die  1  Septembris  1898,  proposito  dubio  super 
Constitutione  "Officioruni  et  munerum,"  videlicet: 
"An  peracto  examine,  Ordinarii  teneantur  auctori, 
deneg*atae  licentiae  librum  publicandi,  rationes  mani- 
festare?" 

E^minentissimi  Patres,  re  mature  perpensa,  respon- 
dere  decreverunt:  "Affirmative,  si  liber  videatur 
correctionis  et  expurg'ationis  capax." 

Datum  Romae  ex  S.  Indicis  Cong-reg-ationis  Secre- 
taria,  die  3  Septembris  1898. 

Fr.  Andreas  Card.  Steinhuber,  Praif. 
Fr.  Marcoeinus  Ciccognani,  Secret. 


CHAPTER  X. 

VARIOUS   EDICTS  :     VISITATION,     SYNOD,    SEMINARY, 
FOUNDATION  OF  CONVENTS,  COLLECTING  ALMS. 

276.  One  of  the  chief  cares  of  a  bishop  is  the  visi- 
tation of  his  diocese.  While  this  duty  may  be  dele- 
g'ated  by  a  special  mandate,  still  unless  a  just  cause 
and  impediment  render  it  impossible  this  work  should 
be  performed  personally  by  the  bishop.  In  this  vis- 
itation of  the  diocese  he  beg"ins  with  the  church  he 
prefers  and  is  free  to  follow  an  order  convenient  for 
himself.  The  order  and  dates  of  visitation  are 
usually  published  with  the  decree.  The  list  of  per- 
sons and  thing's  to  be  visited  is  to  be  found  in  the 
Roman  Pontifical,  Part  III,  and  is  given  below. 

But  among*  other  thing's,  the  bishop,  at  least  in  his 
first  visitation,  may  ask  for  letters  showing*  ordina- 
tion and  appointments  and  he  may  insist  on  an  in- 
ventory of  all  church  property  being*  made  and  filed 
in  the  diocesan  chancery.  [Cf.  ^uarantus  in 
Siivima  BuUarum,  v.  Archiviuni.)  The  expenses  of 
the  visitation  as  well  as  the  maintenance  of  the 
bishop  are  to  be  arrang-ed  in  diocesan  synod,  not  out- 
side.    {Cf,  II  Bait.  )i.   loo.      Ill  Ball.  )i.  14.) 

277.  Following*  is  a  form  for  the  edict  of  visitation: 

"N.  By  the  g'race  of  God  and  the  favor  of  the 
Apostolic  See  Bishop  of  N. 

Being*  about   to    undertake    the    visitation  of    our 

261 


262  LEGAIv    FORMULARY. 

diocese  in  accordance  with  the  prescription  of  the 
holy  council  of  Trent  and  the  sacred  canons;  We 
therefore  g-ive  notice  to  each  and  all  the  faithful 
under  our  jurisdiction  and  all  others  interested,  that 
We  will  visit,  with  our  ordinary  and  also  deleg"ated 
authority,  each  and  all  churches  of  this  city  and  dio- 
cese, as  well  as  all  chapels,  oratories,  altars,  ceme- 
teries, hospitals,  colleg"es,  schools  and  other  pious 
places,  convents  of  nuns  and  of  reg"ulars  which  by 
virtue  of  apostolic  decrees  are  subject  to  Us;  the 
cathedral  chapter  and  its  members  and  likewise  all 
clerics,  confessors,  priors,  syndics  and  ministers  of 
hospitals,  confraternities  and  other  pious  places;  and 
the  whole  diocese. 

Therefore   let  all  the  above  mentioned  know  that 

on  the   day  of  —  A.  D.  18 — ,    We    shall    beg^in 

the  work  of  visitation  in  our  cathedral  church  and 
continue  it  as  announced  below,  with  the  purpose 
and  to  the  end  that  as  much  as  in  Us  lies  with  the 
help  of  God  we  may  procure  the  salvation  of  souls, 
increase  of  divine  worship,  betterment  in  the  state  of 
the  church,  preservation  of  morality  in  the  people 
and  discipline  in  the  clerg-y.  Wherefore  We  warn 
each  and  all  to  whom  pertains  the  care  of  g-overn- 
ment  or  administration  of  the  said  churches,  monas- 
teries, cemeteries  and  pious  places,  or  the  celebra- 
tion of  masses  and  divine  offices  or  the  performance 
of  other  functions,  that,  on  the  day  on  which  We 
shall  visit  the  aforesaid  places  they  shall  produce 
and  show  to  Us  the  books  of  their  administration, 
showing-  exactly  receipts  and  expenses,  the  fulfil- 
ment of  masses  and  of  other  oblig*ations,  and  shall 
also  indicate  the  oblig^ations  or  debts  existing*  on  the 
said  places,  insurance  policies,  sources  of  income, 
statutes  or  constitutions,  and  an  inventory  of  all  the 
movable  and  immovable  property  thereunto  pertain- 
ing-. Further  let  all  the  dig-nitaries,  canons  and 
beneficiaries  of  the  cathedral  chapter,  parish  priests, 
confessors,  vicars,  chaplains  and  other  clerics  of  our 


EDICT    OF    VISITATION. 


263 


whole  diocese  be  present  and  assist  at  the  visitation 
of  their  respective  churches,  and  let  each  show  the 
title,  revenue,  oblig-ations  and  their  fulfilment  of 
the  respective  benefice,  diornity,  prebend,  order,  which 
he  holds  in  the  said  church  under  pain  of dol- 
lars, as  a  fine  to  be  applied  to  pious  places  and  uses. 
But  if  anyone  desires  to  suf^^est  anything-  which 
concerns  the  ^lory  of  God,  the  convenience  or  utility 
of  the  church  or  the  salvation  of  souls.  We  exhort 
him  to  make  it  known  to  Us  by  word  of  mouth  or  in 
writingf.  And  in  order  that  no  one  may  plead  ignor- 
ance of  these  premises  We  have  ordered  this  our 
edict  to  be  published  in  the  usual  way.  Given  &c. 
[l.  s.]                                                N.  Bishop  of  N — . 

N.  Chancellor." 

Here    should    follow  the    dates  assig^ned    to    each 
church. 

278.   Following-   is  a  list  of  thing's  subject  to  epis- 
copal visitation: 

Of  the  Hohf  Eucharist. 

Tabernacle. 
Veil,  and  how  man3'. 
Interior  linin^r. 
Corporal  spread  out. 
Ciboriuni;     bowl     silver, 

gilt  within. 
Vessel  for  purif3-ing'  the 

fingers. 


Font. 

Cover. 

Rails- 


Ambry  on  the  Gospel  side 

of  Sanctuary. 
Inscription  (exteriof  and 

interior.) 


In  a  public  position. 
Pierced  grating-. 


Ambry. 
Lining. 
Reliquaries. 


Veil  of  ciboriuni. 

Particles. 

Fragments. 

Renewed,  how  often. 

Key. 

Lamp,  always  burning. 

Umbrellino    for     proces- 

Processional canopy. 
P3X,  for  the  sick. 
Burse,  etc.,   for  Commu- 
nion of  the  sick. 
Monstrance. 

Throne,  for  benediction. 
Portable  lanterns. 

sions. 

Humeral-veil. 

Of  the  Baptistery. 

Water. 
Drain. 
Shell. 

Holy  oils. 

Salt. 

Cloths. 

Of  the  Hoi)/  Oils. 

Vessels  for  holy  oils. 
Cotton  wet  with   oil,  dry 

cotton  above. 
Purple  burse,  or  cover. 

How    brought    from    the 

cathedral. 
Renewal. 
Burning  the  old. 

Of  the  Confessionals. 

Thick  veil. 
Pictures. 

Doors  with  bolt. 
Purple  stole. 

Of  the  Holy  Belies. 

Names. 

Approbation. 

Exposition. 

Key. 

Proper  Offices. 

Festivals. 

264 


LEGAIv    FORMULARY. 


Hig-h  Altar. 
Steps  up  to  it. 
Steps  upon  it. 
Stone  Altar. 
Consecration. 
Wax-cloth. 
Altar-cloths. 
Their  blessing-. 
Crucifix. 


Choir. 

Large  Crucifix,  in  a  prom- 
inent place. 

Bishop's  throne,  steps 
and  canopy. 

Nave  and  aisles. 

Walls. 

Images  of  saints. 

Pulpit. 

Windows. 

Vaults. 

Seats. 

Division  of  sexes. 

Roof. 

Pavement. 

Ambry. 


Ambries. 

Lavatory. 

Towels. 

Kneeling-desk. 

Prayers  before  and  after 

Mass. 
Prayers  for  vesting. 
Altar-cloths. 
Finger-cloths. 
Communion-cloths. 
Altar-breads,  where  made 
Cottas. 

Missal-markers. 
Bier. 
Pall. 

Book-stands. 
Book. 

Supplement  to  Missal. 
Ordo  celebrandi. 
Ritus  servandus. 
Missals,  binding. 

INDEX   OBSERV 

Name. 

Surname. 

Country. 

Age. 

When  appointed. 

Profession  of  faith. 

Income. 

Obligations  satisfied. 

Divine  office. 

Faculties. 

Parish  books  and  papers. 

Residence. 

Mass.  how  often. 

Sermons. 

Publication    of   feasts, 

fasts,  pastorals. 
Catechism, 
Vespers. 
Processions. 


Of  the  Altars. 

Candlesticks. 
Statues. 
Pictures. 
Altar-cards. 
Covering. 

Cloths  for  changing. 
Antependiums,   and  how 
many. 

0/  the   Chnrch  Itself. 

Alms-chests. 

Holy-water  stoups. 

Doors. 

Churchyard. 

Cross  therein. 

Trees. 

Bell-tower. 

Bells. 

Their  blessing. 

Ladders,  ropes. 

Roof. 

Spire. 

Weathercock. 

Pavement. 

Door. 

Key. 

Of  the  Sacristy. 

Chalices. 

Patens. 

Purificators. 

Corporals  and  palls. 

Veils. 

Burses. 

Amices. 

Albs. 

Girdles. 

Stoles,  maniples  and 
chasubles,  of  five  colors, 
for  feast  days,  for  ferias 

Dalmatics. 

Tunics. 

Copes  of  different  colors. 

Humeral  veils. 

Altar-cushions  and  book- 
stands. 

Devout  images. 

Cruets. 

ANDORUM   IN    VISITATIONE 

Proper  feasts. 

Customs. 

Monthl3'  conferences. 

Servers  at  Mass. 

Blessing  of  ashes,candles 
palms. 

Holy  week. 

Blessing  houses. 

Holy  Sepulchre. 

Blessing  font  and  Pas- 
chal candle. 

Pious  pictures. 

The  long  litanies. 

Ceremonies  in  High  and 
Low  Mass. 

The  administration  of  the 
Sacraments. 

Baptism,  how  long  de- 
layed. 


Canopy. 

Predella. 

Credence. 

Piscina. 

Screen,  or  rails. 

Beli: 

Endowment. 

Obligations. 


Use  of  bells. 

Subterranean  chapels. 

Patron. 

Improper  epitaphs. 

Bur3ing-place      for      the 

clergy. 
And  for  children. 
Titulars  of  church. 
Dedication. 
Both  festivals. 
Office,  how  held. 
Other  festivals. 
Indulgences. 
Fort3'  hours'  prayer. 
Benediction,  how  often 
Lights,  how  many. 

Lavabo-dishes. 

Bells. 

Thurible  and  boat. 

Processional  cross. 

Holy-water  vessel  and 
aspersory. 

Pax. 

Banners. 

Flower-vases. 

Triangular    candlestick. 

Paschal  candlestick. 

Door. 

Key. 

Safe. 

Pavement. 

'Windows. 

Wall. 

Roof. 

Table  of  obligations. 

Inventory  of  the  afore- 
said. 

PERSONAKUM. 

Given  in  private  houses. 

Godfathers  and  godmoth- 
ers. 

Confessions,  where,  at 
what  time. 

Instructions  for  first  com- 
munion. 

Sick  persons  and  how 
often. 

Visiting  sifck,  commenda- 
tion. 

Marriages,  how,  where. 

Other  functions. 

Lent  sermons. 

Funerals. 

Moral  and  dogmatic  the- 
ology. 

Books,  what  studied. 


VISITING    THK    DIOCESE.  265 

279.  The  bishop  should  watch  that  his  secretary 
or  chancellor  of  visitation  carefully  puts  in  writing 
all  the  acts  of  visitation,  because  the  books  in  which 
the  provisions,  orders  and  decrees  made  during*  visi- 
tation are  entered  constitute  full  proof.  [Cf.  Mon- 
acelli,  T.  5,  /.  2,  59.)  Ag'ainst  these  decrees  there 
is  no  suspensive,  but  only  a  devolutive  appeal. 

280.  Following"  is  a  form  for  appointing-  a  visitor 
when  the  bishop  is  impeded  from  visiting-  the  diocese: 

"N.  Episcopus  N.     Dilecto  N.  N.  &c. 

Cupientes  Sacri  Concilii  Tridentini  decretum  de 
visitanda  dicecesi  exequi,  sed,  adversa  valitudine  de- 
tenti,  ecclesias  et  loca  pia  personaliter  visitare  non 
valentes,  Te  de  cujus  fide,  integ-ritate,  scientia  et  ex- 
perientia  plene  in  Domino  confidimus,  visitatorem 
totius  nostras  dioecesis  deleg-amus,  elig-imus  et  depu- 
tamus,  cum  facultate  ecclesias,  monasteria,  confra- 
ternitates,  coemeteria,  hospitalia,  colleg-ia,  locaque 
alia  pia  et  relig-iosa  visitandi,  computa  et  adminis- 
trationes  eorundem  locorum  revidendi,  debitores, 
officiales  et  administratores  ad  libros  exhibendum  et 
reliquatum  respective  solvendum  compellendi  juris 
et  facti  remediis,  sola  facti  veritate  inspecta.  Potes- 
tatem  insuper  decreta  quascunque  faciendi  et  ex- 
equendi  dummodo  processum  non  requirant;  procu- 
rationem a  visitatis,  prout  juris  est,  exig-endi,  et  alia 
gferendi,  quae  facere,  g-erere  et  exequi  tam  ordinaria 
quam  etiam  deleg-ataauctoritateNosnietipsi  visitantes 
possemus,  Tibi  omnia  gfeneraliter  et  specialiter  coni- 
mittimus.  In  quorum  fideni  &c.  Datum  &c. 
[l.  s.]  N.  Episcopus  N. 

N.  Cancellarius  Episcopalis." 

281.  When  the  bishop,  or  his  delegated  visitor,  is 
impeded  maliciousl}^  or  violently  from  making-  the 
visitation  of  places  which  by  law  or  custom  are  sub- 
ject to  his  visitation,   he  may  enforce  his  rig-hts  even 

.35 


266  LEGAL    FORMULARY. 

by  immediate  excommunication  of  the  opponents 
without  other  or  previous  judicial  warning-.  (6/.  ;^. 
334-335  ^elozv.)  Such  would  be  the  case,  if,  when 
proper  notice  of  visitation  has  been  ^iven,  the  doors 
of  the  place  to  be  visited  are  locked  ag^ainst  the 
bishop  or  opposition  is  otherwise  notoriously  mani- 
fested. {S.  Cong".  Cone,  in  una  Vicen.  juris  visi- 
tandi  26  Sept.  i6gg,  et  16  Jan.  lyoo.)  In  similar  cir- 
cumstances he  mig-ht  interdict  the  people  or  place, 
whenever  the  honor,  reverence  and  thing's  (res) 
usually  g-iven  are  publich'  and  injuriously  denied  the 
bishop.  The  same  S.  Cong-,  of  theCouncil  sustained 
a  censure  of  interdict  thus  inflicted.  {S.  C.  C .  in 
Venaphrana  interdieti^  26  Jan.  i6gy.) 

282.  Following-  is  a  form   for  excommunication  in 
such  circumstances: 

"On  the  —  day  of  —  A.  D.  —  when  the  Most  Rev- 
erend N.  N.,  Bishop  of  N — ,  was  exercising-  his  jur- 
isdiction by  making-  visitation,  N.  N.  and  N.  N. 
dared  actually  and  notoriously  to  resist  him  and  to 
oppose  him  wishing-  to  visit  the  church  of  N — . 
Wherefore  the  aforesaid  Most  Reverend  Bishop  in 
the  very  act  of  manifest  violence  thus  offered  him, 
and  for  the  defense  of  his  rigfhts,  repelling-  force  by 
force,  excommunicated  the  aforesaid  N.  N.  and  N.N. 
and  commanded  these  papers  ag-ainst  them  to  be 
issued  and  affixed,  that  they  may  be  avoided  by  all 
the  faithful. 
[l.  s.]     N.  Chancellor  (or  actuary)  of  Visitation." 

283.  The  following-  form  may  be  used  for  interdict: 

"We,  N.  N.,  Bishop  of  N— ,   on  this  —  day   of  — 
A.  D.  — have  placed  under  ecclesiastical  interdict  the 
church  of  N — ,  (or  the  city  or  persons)  because  (here 
state  the  reason.)     Sig-ned: 
[L.  s.]     N.  N.  Chancellor.        N.  Bishop  of  N— ." 


VISITING    THE    DIOCESE.  267 

The  following-  form  may  also  be  used: 

"This  church  of  N — ,  (or  city  or  people)  is  pub- 
lished as  under  ecclesiastical  interdict  by  our  ordi- 
nary (or  deleg-ated)  authority  because  (here  state  the 
reason.)     Dated  this  —  day  &c. 

[e.  s.]  N.  Bishop  of  N. 

N.  Chancellor." 

284.  A  diocesan  synod  is  usually  held  after  the 
bishop's  visitation.  The  sacred  canons  require  that 
one  be  held  every  year  and  the  Third  Council  of 
Baltimore,  n.  23,  sug"g'ests  the  same,  when  it  enacts 
that  "each  year  in  diocesan  synod  examiners  of  the 
clerg*}^  are  to  be  chosen  who  will  be  satisfactory  to 
the  synod  and  approved  by  it."  Each  three  years 
the  diocesan  consultors  also  are  to  be  chosen  after 
proposal  of  names  by  the  clerg-y,  which  undoubtedly 
can  be  done  satisfactorily  only  at  a  meeting-  of  the 
priests.  The  Third  Council  of  Baltimore,  n.  20, 
requires  that  the  bishop  ask  the  advice  of  his  con- 
sultors before  calling*  and  publishing-  a  diocesan 
synod.  Hence  for  safet}^  mention  of  this  advice  re- 
g'arding"  the  holding*  of  a  synod  should  be  inserted  in 
the  minutes  of  the  synod  and  in  the  call  thereto. 
In  this  call,  the  cathedral  chapter,  \vhere  it  exists, 
should  be  invited  by  name  to  participate.  A  synod 
may  be  held  outside  a  church,  but  the  most  appro- 
priate place  is  the  cathedral.  Under  no  circum- 
stances is  it  lawful  for  a  bishop  to  hold  a  synod  in 
the  diocese  of  another  bishop,  even  with  his  consent. 
He  cannot  order  priests  to  leave  their  own  diocese. 
Hence,  too,  all  appointments  made  in  a  synod  held 
outside  of  a  bishop's  own  diocese  seem  null  and  void, 
for  the  required  jurisdiction  seems  lacking". 


268  LEGAL    FORMULARY. 

285.  Following-  is  a  form  for  noting-  that  the  advice 
of  the  chapter  (or  consul  tors)  was  asked: 

"Die mensis anno — . 

Convocato  coram  Ill5^  et  RevHiP  D.  N —  Episcopo 
in  ffidibus  episcopalibus  hujus  civitatis  N — ,  capitulo 
cathedrali,  nenipe  N.  N.  et  N.  N.  dignitatibus  et 
canonicis  majorem  partem  capituli  constituentibus, 
ibique  capitulariter  congregatis,  fuerunt  per  me  in- 
frascriptum,  de  mandato  ejusdem  D.  N — ,  Episcopi, 
intelligibili  voce  lecta  decreta  et  ordinationes,  quae 
evulg-ari  et  publicari  debent  in  proxima  futura  synodo 
habenda  die  —  mensis  — ;  super  quibus  expleta  lec- 
tura,  idem  D.  N — ,  Episcopus  consilium  eorundem 
DD.  dignitatum  et  canonicorum  sic  capitulariter  con- 
g-reg'atorum  requisivit,  qua  per  eos  requisitione 
audita,  propositum  et  determinationem  dicti  D.  N — , 
Episcopi,  synodum  habendi  et  in  eadani  decreta  supra 
memorata  publicandi  laudaverunt  et  approbaverunt. 
In  quorum  &c.  Presentibus  testibus  N.  N.  et  N.  N. 
Datum  &c. 

N.  N.  Cancellarius  Episcopi." 

The  method  of  choosing  the  diocesan  consultors 
and  synodal  examiners  was  given  in  the  preceding- 
part  of  this  work,  n.  47  and  n.  107.   - 

286.  Following-  is  a  form  of  edict  for  calling-  the 
synod: 

"N.  Episcopus  N— . 

In  suscepti  a  Nobis  episcopatus  primordiis,  gregem 
curse  nostrae  divina  dispensatione  commissum,  per- 
sonaliter  visitare  et  universam  dioecesim  perlus- 
trare  nequaquam  distulimus,  et  quidem  omnium  in 
ea  locorum  conditionem,  ecclesiasticorum  disciplinam, 
necnon  populorum  mores  dignoscentes,  ea  quae  repar- 
atione  aut  reformatione  indigebant,  pro  viribus 
restaurare  curavimus.  Ut  ig-itur  quae  cultui  divino 
christiana^que  pietati  consona    sunt  validius  consol- 


DIOCESAN    SYNOD.  -  269 

identur,  capituloconsulto,  dioecesanam  synodum  cele- 
brare  decrevimus.  Universis  proinde  ac  sing-ulis, 
qui  tarn  in  civitate  quam  in  coeteris  nostrae  dirjecesis 
locis,  beneficiis  etiam  sinecura  potiuntur,  presbyteris 
ac  clericis  tarn  in  sacris  quam  in  minoribus  ordinibus 
constitutis,  aliisque  omnibus  etiam  reg"ularibus  qui 
de  jure  vel  de  consuetudine  tenentur  adesse,  in  vir- 
tute  sanctae  obedientiae,  necnon  sub  poenis  per  sacros 
canones  injunctis  ac  aliis  arbitrio  nostro  infligendis 
praecipimus  et  mandamus,  capitulum  autem  nostrum 
peramanter  invitamus,  ut  die  —  proximi  mensis — , 
quam  pro  synodo  inchoanda  sig"nanter  indicimus, 
clericali  habitu  telari  induti,  ac  aliis  indumentis  et 
sio-nis  eorum  muneribus  et  ordinibus  respective  con- 
g"ruentibus  instructi,  in  ecclesia  cathedrali  hora 
octava  antemeridiana  conveniant.  Ut  autem  id  ex- 
actius  ad  omnipotentis  Dei  laudem  et  g'loriam  perfici 
queat,  omuesin  Domino  enixe  obsecramus  ut  oration- 
ibus  a  Patre  luminum  auxilium  Nobis  impetrent  et 
seipsos  Deo  acceptabiles  exhibeant.  Volumus  autem 
ut  hsec  synodi  indictio  affixa  valvis  ecclesiae  cathed- 
ralis  necnon  parochialium  dioecesis,  omnes  afficiat  ac 
si  fuisset  singfulis  intimata.  Datum  &c. 
[l.  s.]  N.  Episcopus  N. 

N.  N.  Cancellarius  Episcopalis." 

Instructions  as  to  lodg^ino-,  hours  of  meeting*  and 
other  thing's  usually  are  sent  to  those  oblig-ed  to  at- 
tend the  synod.  It  is  evident,  too,  that  a  prudent 
bishop  will  take  counsel  of  learned,  wise  and  pru- 
dent men  and  submit  his  proposed  decrees  to  them 
before  publishing-  them  in  synod.  This  is  especialh' 
true  when  entirely  new  methods  are  to  be  introduced 
or  radical  chang^es  made. 

287.  Among"  the  chief  cares  of  a  diocesan  bishop  is 
the  erection  and  conduct  of  a  seminarv  for  instruct- 
ing-  young-  men  destined  for  the  priesthood.      Accord- 


270  LEGAL    FORMULARY. 

inof  to  the  council  of  Trent  each  diocese  should  have 
its  seminary.  Where  this  is  impossible,  at  least 
each  province  should  have  a  common  institution. 
{C/.  Ill  Council  Bait.  n.  153.)  For  co'unsel  and  as- 
sistance in  gfoverning"  the  seminary  the  bishop  is 
ordered  by  the  council  of  Trent  to  choose  reg'ents, 
one  of  whom  he  must  select  from  the  cathedral 
chapter,  the  other  from  the  diocesan  clergy.  Fur- 
ther the  chapter  chooses  a  regfent  and  the  clerg-y 
also  one,  making-  four  in  all.  Their  tenure  is  per- 
petual and  they  cannot  be  removed  except  for  cause. 
Where  the  seminary  is  not  endowed  and  has  not  suf- 
ficient funds  for  its  support,  the  regents  (deputati) 
may  impose  a  proportionate  tax  on  the  episcopal 
manse,  the  chapter,  all  benefices,  even  if  they  are  of 
jus  f>atronatus  or  exempt.  If  then  sufficient  support 
is  not  at  hand,  simple  benefices  may  be  united  to  the 
seminar3\  But  a  real  necessity  is  required  before 
this  union  can  be  effected. 

288.  The  III  Council  of  Baltimore,  n.  178-179 
following  the  council  of  Trent,  decrees  that  the 
bishop  shall  select  deputati  or  regents:  These 
deputati  are  of  tw^o  kinds:  Those  whose  advice 
must  be  asked  concerning  the  internal  management 
of  the  seminary  and  those  whose  advice  is  necessary 
regarding  the  administration  of  its  temporal  affairs, 
such  as  the  levying  of  a  tax  for  its  support,  the  ex- 
amination of  accounts  and  the  like.  For  each  semi- 
nary, minor  or  major,  at  least  two  deputies  are  to  be 
selected,  one  for  the  spiritual  matters,  such  as  the 
instruction,  discipline  and  character  of  the  students; 
the  other  for  temporal  concerns.  These  regents 
will    be  chosen    for    diocesan  seminaries  by  the    re- 


ERECTION    OF    SEMINARY.  271 

spective  bishops  after  taking  the  advice  of  their  con- 
suitors,  and  for  provincial  seminaries  by  the  bishops 
of  the  province  as  a  body. 

289.  Private  seminaries  and  colleg-es  under  the 
manag"emeut  of  secular  priests  are  declared  subject 
to  the  jurisdiction  and  inspection  of  the  diocesan 
bishop.  Those  in  charofe  of  religious  orders  or  insti- 
tutes are  to  keep  the  arrano-ement  entered  into  b}^ 
proper  authority.  But  it  should  be  noted  that  a 
bishop  cannot  without  special  permission  from  the 
Holy  See  give  a  seminary  into  the  charo-e  of  a  reli^"- 
ious  order  or  institute,  and  whenever  such  a  religious 
community  is  put  in  charg^e,  the  rig'hts  of  the  bishop 
should  be  conserved.  {C/.  Bened.  XIV,  dc  Syii. 
Dioeces.  I.  5,  c.  2,  n.  g.) 

The  council  did  not  make  any  enactment  concern- 
ing- the  support  of  the  seminary.  Up  to  the  present 
time  in  the  United  States  the  usual  method  has  been 
an  annual  collection  taken  up  in  every  church  of  the 
diocese,  none,  even  those  in  charg-e  of  relig'ious  orders 
being-  exempt.     {Cf.  Const.  Rom.  Pontifices.) 

290.  The  following-  form  for  decreeing  the  erec- 
tion of  a  seminary  ma}^  be  useful: 

"N.  N.  Episcopus  &c. 

Cum  in  hac  civitate  et  di(]ecesi  N —  nullum  semi- 
narium  majus  (vel  colleg"ium  ecclesiastjcum  puer- 
orum)  juxta  Concilii  Tridentini  dispositionem  et 
Tertii  Plenarii  Concilii  Baltimorensis  decreta  erec- 
tum  et  institutum  existat,  cumque  ejusdem  necessi- 
tas  seu  maxima  utilitas  indies  innotuerit;  Nos  ig-itur 
volentes  decretis  conciliaribus  satisfacere  et  necessi- 
tati  dioecesis  consulere  in  prsemissis  opportune  pro- 
videndo,  cum  concilio  N.  N.  et  N.  N.  nostras  cathed- 
ralis  g-raviorum  canonicorum,   quos  pro  reg'imine  et 


272  LEGAL   FORMULARY. 

o-ubernio  seminarii  erigfendi  deputatos  eli^imus,  (vel 
suscepto  dioecesanorum  consultorum  concilio)  in  hac 
civitate  in  domibus  N.  in  via  N —  ununi  seminarium 
majus  (vel  mintis)  pro  uno  illius  rectore  et  competenti 
nuniero  juvenum  nostrae  dioecesis  requtsita  a  Tertio 
Cone.  Plen.  Bait.  (tit.  5)  habentium  perpetuo  usu  et 
habitatione,  qui  in  eodem  philosophiam,  theolo^iani, 
sacram  scripturam,  jus  canonicum,  liturg^iam,  alia- 
que  necessaria  (mutantur  pro  minori  seminario)  edis- 
cant,  perpetuo  erig^imus  et  instituimus;  illique  sic 
erecto  et  instituto,  pro  ejus  dote  illiusque  rectoris  et 

alumnorum    sustentatione   bona assig'namus  et 

appropriamus  ita  ut  liceat  rectori  et  alunmis  pro 
tempore  existentibus  per  se  vel  alium  sive  alios  etiam 
dicti  seminarii  nomine  propria  auctoritate  corporalem, 
realem  et  actualem  possessionem  dictorum  bonorum, 
illorumque  functuum,  reddituum  et  proventuum 
libere  apprehendere  et  apprehensam  perpetuo  reti- 
nere,  eosdemque  fructus  et  redditus  percipere,  levare, 
ac  in  suos  et  dicti  seminarii  usus  et  utilitatem  conver- 
tere,  cujusvis  licentia  desuper  minime  requisita. 
(Si  taxa  beneficiis  est  imponenda  additur.)  Kt  quia 
pro  manutentione  mag^istrorum  et  sustentatione 
alumnorum  ac  mercede  inservientium  bona  et  reddi- 
tus ut  supra  assio-nata  non  sufficiunt,  ideo  ut  portio 
aliqua  et  fructibus  mensa  nostra  et  aliorum  quo- 
rumcunque  beneficiorum  etiam  regularium  civitatis 
et  dioecesis  probe  ad  supplendum  dictis  expensis  ad 
formam  S.  Cone.  Trid.  detrahatur  et  etiam  semin- 
ario applicetur,  pro  eoniicienda  taxa  Rev.  Canoni- 
cum N.  N.  de  capitulo  et  Rev.  N.  N.  de  elero  ex 
parte  nostra  in  consultores  eligimus  et  deputamus; 
mandamusque  ut  alii  duo,  alter  per  capitulum,  alter 
per  clerum  infra  terriiinum  30  (vel  alias)  dierum 
eligantur.  Et  ita  in  exeeutionem  decreti  Cone. 
Trid.  sess.  23,  c.  18,  de  ref.  et  decretorum  Con.  Ill 
PI.  Bait,  erig^imus,  instituimus  et  bona  respective 
assiofnamus,  onini  meliori  modo  quo  possumus. 
[l.  s.]     Datum  &c.  N.  E^piseopus  N." 


TAX   FOR    SEMINARY.  273 

Lectum,  latum  et  publicatum  fuit  i)rcijscns  decre- 
tum  erectionis  seminarii  in  civitate  N —   in   cudibus 

episcopalibus   die mensis anno ;   pra;- 

sentibus  N.  et  N.  ad  id  pro  testibus  specialiter  adhi- 
bitis  atque  ro^atis. 

N.  N.  et  N.  N.  testes. 
N.  N.  Cancellarius  Episcopalis." 

291.  Following-  is  a  form  for  certify inj^-  the  tax 
roll  and  the  assessment  on  each  benefice  in  accord- 
ance with  the  above  edict: 

"Cum  seminarium  ecclesiasticum  in  hac  civitate 
erectum  pro  manutentione  mag"istrorum,  alumnorum 
et  inservientium  redditus  sufficientes  non  habcat, 
eidem  propterea  cong^rue  providere  volentes,  infras- 
criptam  portionem  sive  partem  fructuum  nostras 
mens^  et  aliorum  beneficiorum  ecclesiasticorum 
hujus  civitatis  et  dioecesis  colleg-io  pra^dicto  appli- 
candam  cum  concilio  consultorum  deputatorum  ad 
formam  decreti  Con.  Trid.  cap.  18,  sess.  23,  de  ref., 
auctoritate  Nobis  in  eodem  decreto  tributa  detra- 
hendani  duximus,  prout  praesenti  decreto  nostro  pro 
nunc  in  quantitate  infrascripta  detrahimus,  taxamus, 
et  pra3fato  colleg"io  sen  seminario  applicanius,  ac 
annis  sing^ulis  tam  per  nostram  mensani  quam  per 
capitulum  et  caeteros  beneficiarios  infrascriptos  solvi 
in  mense  —  et  contribui  debere  mandamus,  videlicit: 

Mensa  episcopalis  scutata . 

Capitulum  cathedralis  scutata  . 


Parochialis  ecclesia  N  —  scutata . 

Beneficium    simplex    sub    inv.    N.    in    ecclesia    N. 

scutata (et  sic  nominentur  omnia  beneficia.) 

N.  E^piscopus  N. 

N.  N.  consultor  dep.  capituli  ab  111^}^  Episcopo. 
N.  N.  consultor  dep.  capituli  pro  capitulo. 
N.  N.  consultor  dep.  cleri  ab  IllES!  Episcopo. 
N.  N.  consultor  dep.  cleri  pro  clero. 

N.  N.  Cancellarius  Epis.'^rog-atus," 

.36 


274  LEGAL    FORMriLARY. 

292.  The  laws  of  the  church  prohibit  a  priest  from 
acting-  as  g"uardian  or  administrator  for  any  except 
his  relatives  within  the  fourth  degfree.  A  special 
dispensation  from  the  bishop  is  required  for  all  other 
cases,  and  even  in  the  case  of  relatives  permission 
should  be  obtained.  Clerics  are  also  forbidden  to  g^o 
bail  for  others  or  act  as  their  procurators.  iCf.  II 
Cone.  PL  Bait.  n.  is?-)  Permission  may  be  given 
by  the  bishop  in  this  form: 

"N.  Bishop  of  N.     To  N.  N.  &c. 

Since  you,  as  a  near  relative,  are  by  law  a  proper 
guardian  of  N.  N.  and  N.  N.,  minors,  and  since  you 
desire  to  act  as  such,  We  hereby  grant  permission 
for  you  to  do  and  perform  all  and  singular  the  things 
required  by  law,  use  or  custom  to  be  done  by  guar- 
dians, until  the  said  minors  shall  become  of  ag^e; 
provided,  however,  that  you  in  no  way  undertake  or 
become  mixed  in  affairs  interdicted  by  law  to 
ecclesiastical  persons.  In  testimony  whereof  &c. 
Given  &c. 

[l.  s.]  N.  Bishop  of  N. 

N.  N.  Bishop's  Chancellor." 

293.  When  a  monastery  is  to  be  established,  the 
explicit  permission  of  the  bishop  of  the  diocese  and 
of  the  Holy  See  is  required.  (C/.  Const.  Romanos 
Pojitifices.)  In  granting  permission  the  bishop  is 
oblig*ed  to  see  that  the  apostolic  constitutions  are 
observed,  and  particularly  that  the  new  foundation 
and  the  religious  to  be  introduced  can  be  properly 
supported  without  detriment  to  the  religious  houses 
already  in  existence  and  without  detriment  to  parish 
churches.  {Cf.  Monacclli,  T.  /,  t.  6,  f.  ig.)  When 
monasteries  claim  the  privilege  that  others  shall  not 
be  established  within  a  certain  distance,   this  privi- 


ESTABLISHMENT    OF    CONVENTS.  275 

leg"e,  if  real,  must  be  guarded  in  establishing-  new 
monasteries.  But  this  does  not  appl}^  to  congrega- 
tions of  secular  priests  living-  in  community  and 
founded  solely  by  episcopal  authority.  [Cf.  S.  C 
C.  g  Aug-.  162^,  ex  lib.  12,  Dccret.  fol.  2g8.)  It 
should  be  noted  that  if  a  parish  priest  sees  that  a 
chapel  is  being  erected  in  his  parish  and  does  not 
protest  he  is  supposed  to  have  consented  and  cannot 
later  bring  suit  on  that  head.  {R.  Rota.  2^  June  ly 05.) 

294.  Regarding  the  establishment  of  convents  for 
nuns  there  is  no  such  privilege  or  prohibition.  It  is 
required  that  they  have  the  bishop's  permission,  and 
the  assurance  of  a  competent  support.  For  sisters 
who  do  not  take  solemn  vows  nor  observe  cloister 
the  Holy  See  leaves  the  establishment  of  new  houses 
entirely  with  the  bishop,  and  it  refuses  to  recognize 
their  foundations  directly  or  indirectly.  (yCf.  S.  C . 
C.  20  Feb.  i6gj,  i)i  una  Imol.)  Even  though  the 
bishop  of  the  diocese  visits  such  foundations,  they 
are  not  for  that  reason  considered  approved.  {Cf. 
S.  C.  C.  1608.) 

295.  In  the  erection  of  a  convent  for  nuns,  and  this 
applies  also  to  houses  for  sisters  belonging  to  reli- 
gious congregations,  the  bishop  before  g'iving  his 
consent,  should  see  to  it,  1^  That  the  goods  assigned 
as  an  endowment  are  safe  and  sufficient  for  com- 
munity life.  2"^  That  the  house  is  not  established  in  a 
small  place  where  there  is  no  chance  to  get  confes- 
sors, except  the  house  is  wealthy  enoug'h  to  pay  the 
expenses  for  securing  them.  {S.  C.  Epp.  /?  Sept. 
158J?)  3^  That  the  house  is  not  established  near  a 
monastery  of  men  {Cf.  Can.  Mo)iust.  puell.  18,  q.  2.) 
4^^  The  founder,  ho    who  endows,  mav  make  certain 


276  LEGAL    FORMULARY. 

conditions,  provided  they  are  not  ao^ainst  good*  morals 
or  discipline,  but  be  cannot  reserve  the  rig-ht  of 
choosing-  the  superior.  5°  The  nuns  of  any  and 
ever}^  order  or  rule  should  be  subject  to  "the  jurisdic- 
tion of  the  ordinary  in  order  to  preclude  dissensions 
and  complaints;  and  therefore  they  should  not  be 
subject  to  the  jurisdiction  of  any  relig^ious  order.  A 
prudent  bishop  will  constantly  refuse  his  consent  to 
any  foundation  unless  the  convent  is  subject  to  his 
jurisdiction.  Such  too  is  the  g^eneral  law.  (C/. 
Cap.  Cognovhniis  i8^  q-  2 ;  Monacelli  T.  i,  L  6,  21.) 
6^  The  number  of  members  of  the  convent  should  be 
fixed.  7''  The  bishop  may  exact  an  ag"reement  in 
writing-  that  the  relig-ious  will  not  collect  alms,  {Cf. 
S.  C.  Ef>p.  4  July,  i6g2,)  for  the  Holy  See  replied 
that  a  foundation  may  be  made  '^Cum  strictissima 
ohlig'atione  7ion  quccstuandiy  Monacelli  also  holds 
that  a  bishop  may  la\^  down  as  a  necessary  condi- 
tion of  his  consent  that  the  relig*ious  may  not  acquire 
real  estate.  iCf.  Monacelli,  Form  T.  /,  t.  6,  7i.  ig, 
n.  2C}.)  In  fact  a  multitude  of  relig-ious  houses  can- 
not but  g-reatly  interfere  with  parish' rig-hts  and  also 
with  smooth  diocesan  administration.  Too  many 
relig-ious  houses  interfere  not  only  with  the  rig-hts  of 
the  bishop  and  the  diocesan  clerg-y,  but  also  become 
injurious  to  each  other.  A  proper  number  is  g-ood 
and  useful.  {Cf.  S.  C.  C.  in  Tibiirt.  28  Feb.  i6g8.) 
2%.  Besides  relig-ious  orders  there  are  especially 
in  the  United  States  relig-ious  cong'reg-ations  which 
are  diocesan  or  scattered*  over  several  dioceses, 
thoug-h  not  exempt  from  the  jurisdiction  of  the  ordi- 
nary of  the  diocese  wherein  the  house  exists.  The 
men    or    women  respectively  of    such  congreg-ations 


ESTABLISHMENT    OF    CONVENTS.  277 

take  simple  vows  either  temporary  or  perpetual. 
The  vow  of  poverty  which  they  take  does  not  rentier 
them  incapable  of  acquiring'  and  disposing"  of  prop- 
erty. Only  the  use  and  administration  of  it  are  pro- 
hibited. They  should  therefore  before  they  take 
vows  g^ive  over  the  administration  and  use  and  pro- 
ceeds of  their  property  to  whomever  they  choose  or 
to  their  cong'rejsfation  for  the  time  they  will  remain 
in  the  community.  (T/",  S.  C.  EE.  et  RR,  12  junii 
i8j8.)  The  cong'reg'ation  does  not  obtain  the 
dominion  of  their  property  acquired  even  when  in  the 
convent,  except  when  they  g'ive  it.  If  a  sister  leaves 
the  community  or  is  expelled  her  dowry  is  to  be  re- 
turned. {Cf.  S.  C.  C.  in  CastelL  j  Mar.  iyg2;  S. 
C.  Ep.  ct  R.  1)1  Comoi,  i  Dec.  1758.')  In  fact  only 
by  the  death  of  the  sister  does  her  dov^^ry  become  the 
full  propert}^  of  the  convent. 

297.  When  a  religious  cong^reo'ation  is  only  dioce- 
san the  Holy  See  does  not  approve  it,  but  leaves  its 
approval  to  the  bishop  of  the  diocese.  When,  how- 
ever, it  has  houses  in  various  dioceses,  it  should  apply 
for  approval  to  the  Sacred  Propag-anda.  The  first 
requisites  for  obtaining*  this  approval  are:  1^  Let- 
ters of  the  bishop  in  whose  diocese  the  mother-house 
is  situated,  and  letters  also  of  the  other  bishops  in 
whose  dioceses  branch  houses -exist.  These  letters 
should  show  when  and  by  whom  the  institute  was 
founded,  whether  a  "decree  of  praise"  has  already 
been  obtained  from  the  Apostolic  See,  how  many 
houses  the  institute  has  and  how  man}^  professed 
relig"ious,  when  the  constitutions  were  put  into  etfect, 
what  progress  the  new  institute  has  made,  what  vicis- 
situdes it  has  underg'one,    what  is  its  present  condi- 


278  IvEGAIv   FORMULARY. 

tion  and  what  the  amount  of  its  property.  2°  The 
consent  of  all  the  relig'ious  g"iven  capitulariter  is  re- 
quired. 3^  A  successful  trial  of  the  constitutions  of 
the  institute.  When  these  matters  are  sent  to  the 
Propag^anda  and  a  compilation  is  made,  the  matter  is 
referred  to  a  commission  of  consultors  over  whom  a 
cardinal  belong-ing-  to  the  Propaganda  presides. 
One  of  the  consultors  examines  and  reports  on  the 
matter  to  the  commission  of  consultors  who  in  turn 
formulate  a  report  in  writing*.  The  whole  matter, 
with  the  report,  is  then  referred  to  the  congfregfation 
of'the  cardinals  for  final  adjustment. 

298.  If  the  institute  is  only  diocesan,  it  is  subject 
entirely  to  the  bishop's  authority  and  jurisdiction. 
If  not  merely  diocesan  but  scattered  over  several 
dioceses  and  subject  to  one  superior  gfeneral,  then  no 
bishop  can  be  the  superior  of  the.  conorreofation,  but 
each  bishop  may  exercise  jurdisdiction  over  the  houses 
and  the  relig'ious  existing*  in  his  own  diocese,  accord- 
ing- to  the  sacred  canons  and  the  constitutions  ap- 
proved by  the  Holy  See.  The  authority  of  the 
superior  g*eneral  must  be  preserved^  as  laid  down  in 
the  approved  constitution,  and  therefore  a  bishop 
may  not  interfere  in  those  matters  which  concern  the 
g-eneral  g-overnment  of  the  whole  institute  or  cong're- 
g-ation  even  thoug"h  the  mother-house  is  situated  in 
his  diocese.  Neither  can  he  make  any  changfe  in  the 
constitution  especially  if  approved  by  the  Holy  See. 
(C/.  ^S'.  C.  Ep.  et  R.  8  June  i8^6^  in  Const,   Tatir.) 

299.  The  bishop  of  the  diocese  must  appoint  the 
ordinary  and  extraordinary  confessor,  and  "the  rig'ht 
of  naming"  them  is  usually  not  gfiven  the  nuns  them- 
selves."    {S.  C.  Ep.  I  Sept.  i860.)     The  bishop  may 


ESTABLISHMKNT    OF    CONVENTS.  279 

also  ^ive  the  institute  permission  to  alienate  prop- 
erty of  small  value,  and  he  must  be  heard  before  a 
sister  is  expelled.  {Eadeni  Cojig,  20,  Feb.  1861.) 
He  presides  over  the  chapter  for  the  election  of  a 
superior,  but  he  cannot  mix  in  the  deliberations 
either  b}^  votinof  or  dictating-  a  vote.  (Cy.  Zitelli^ 
App.  Juris  Ec.  p.  24^.)  The  Sacred  Cong-reg"ation 
of  Bishops  and  Reg^ulars  has  extended  to  these  in- 
stitutes the  requirement  of  the  council  of  Trent  that 
the  bishop)  must  examine  novices  reg-ardincr  their  vo- 
cation before  they  are  professed.  C^j  March,  i860.) 
The  bishop  has  the  rig-ht  of  inspection  as  to  faith, 
communit}^  life,  the  eradication  of  scandals  and 
abuses;  but  domestic  direction  does  not  belong-  to 
him  but  to  the  superiors  of  the  houses.  The  right 
of  visitation  belong-s  to  the  bishop,  and  althoug*h  the 
superior  g-eneral  may  have  the  rig-ht  to  visit  all  the 
houses  for  the  preservation  of  reg'ular  discipline,  still 
the  same  Sacred  Cong'reg-ation  of  Bishops  and  Reg"- 
ulars  in  1858  ordered  such  superiors  to  abstain  from 
officially  visiting-  the  church  and  the  thing-s  pertain- 
ing to  it.  The  administration  of  the  propert}^  of  the 
whole  institute  or  cong-reg-ation  belong-s  to  it,  not  to 
the  bishop;  but  an  abuse  committed  in  the  adminis- 
tration falls  under  his  jurisdiction  as  ordinary,  and 
he  can  curb  the  excess.  The  institute,  not  the 
bishop,  holds  the  leg^al  title  to  its  real  estate  and 
other  propert3\  {Cf.  Zitelli,  L  c.)  The  bishop  may 
appoint  a  deleg-ate  to  perform  the  above  mentioned 
acts  in  his  stead. 

300.  The  following*  form  for  giving-  consent  to  the 
establishment  of  a  monastery  or  convent  nia}^  be 
used  but  to  it  the  necessarv  conditions  should  be  at- 


280  LEGAL    FORMULARY. 

tached  and  made  part  of  it.  A  duplicate  of  the  agree- 
ment should  be  kept  in  the  chancery. 

"N.  Episcopus  N. 

Tibi,  Revdo  Patri  N.  ordinis  —  pro  virciali,  ut 
una  cum  difinitorio,  cujus  consensum  exhibuisti,  ac 
servatis  in  reliquis  constitutiouibus  ordinis,  constito 
Nobis  duod^cim  relig"iosos  tua^  religfionis  commode 
sine  aliorum  detrimento  sustentari  posse,  monas- 
terium,  seu  conventum  absque  tamen  oratorio  pub- 
lico in  loco  N —  hujus  nostrae  dioecesis,  juxta  consti- 
tutionem  Apost.  "Romanos  Pontifices,"  extruere  et 
fundare  possis,  sine  tamen  praejudicio  ecclesiarum 
parochialium  dicti  loci,  ac  nostras  cathedrae,  licen- 
tiam  et  facultatem,  quantum  ad  Nos  spectat,  con- 
cedimus  et  consensum  praestamus,  dummodo  quis 
aliquid  revelans  quod  fundationi  sbstare  possit,  non 
superveniat;  et  dummodo  conditiones  infrascriptae 
omnino  adimpleantur,  videlicet:  (ponantur  condi- 
tiones.)    Datum  &c. 

[l.  s.]  N.  Episcopus  N. 

N.  N.  Cancellarius  Episcopalis." 

301.   Another  form,  similar  to  this,    may  be  used: 

''N.  Bishop  of  N.  To  the  Sister  Superior  of  N. 
It  appearing-  advantag^eous  that  a  hospital  (school, 
convent)  be  established  in  the  city  of  N —  in  our  dio- 
cese, and  you  having-  assured  Us  in  writing-  that  your 
order  Cor  some  person)  has  devoted  sufficient  means 
or  money  for  that  purpose,  and  the  constitution  of 
your  order  having-  been  observed  in  other  respects. 
We  hereby  g-rant  you,  inasmuch  as  pertains  to  Us, 
the  necessary  permission  and  faculty  for  erecting- 
and  founding-  a  hospital,  (school,  convent)  without 
however  a  public  orator}^  or  chapel,  in  the  aforesaid 

city  on street,  no. ,  in  accordance  with  the 

constitution  of  Pope Ueo  XIII,  "Romanos  Pontifices," 
and  without  any  prejudice  to  parish  churches  or  our 
cathedral,  and  on  condition  that  nothing-  will  super- 


CHANGES   IN    FOUNDATIONS.  281 

vene  to  oppose  the  fouudation,  and  on  the  further 
essential  condition  that  neither  you  nor  the  sisters 
for  the  time  beingf  in  the  hospital  now  or  in  the 
future  shall  collect  or  attempt  to  solicit  alms  in  our 
episcopal  city  or  diocese  and  that  no  real  property 
shall  be  bought  for  the  use  of  the  said  hospital 
(school,  convent)  without  our  previous  permission  in 
writing.  In  testimony  whereof,  &c.  Given  &c. 
[l.  s.]  N.  Bishop  of  N. 

N.  N.  Bishop's  Chancellor." 

302.  When  a  religious  house  of  any  kind  is  to  be 
established  in  a  diocese  the  consent  of  both  the  bishop 
and  the  Holy  See  is  required.  When  once  estab- 
lished the  institution  cannot  be  moved  from  place  to 
place  or  converted  into  another  similar  use,  as  a 
school  into  a  church,  a  monastery  or  convent  into  a 
college  or  into  a  house  for  orphans  or  the  sick,  or 
vice  versa.  Neither  can  a  new  cause  or  use  be  af- 
fixed and  the  original  use  preserved,  unless  this  new 
use  concerns  onlv  the  internal  administration  or  do- 
mestic  discipline  of  the  religious  community.  Thus 
sisters  teaching  a  parish  school  ma}"  not  start  a 
boarding  school  or  asylum  on  the  original  foundation, 
but  a  scholasticate  for  the.  religious  may  be  opened 
in  a  monastery  or  convent,  provided  no  outside 
students  are  received  without  express  and  explicit 
permission  of  the  bishop  and  the  Holy  See.  Much 
less  can  a  monaster}^  open  up  a  church  to  the  public 
or  an  asylum.  These  are  the  words  of  the  apostolic 
constitution  Romanos  Poutificcs\  Sodalibus  re- 
ligiosis  novas  sibi  sedes  constituere,  erigendo  novas 
ecclesias,  aperiendov^e  coenobia,  collegia,  scholas,  nisi 
obtenta  prius  expressa  licentia  ordinarii  loci  et  Sedis 

Apostolicse,  non  licere." 
37 


282  IvEGAlw   FORMULARY. 

"Reli^iosis  sodalibus  non  licere  ea  quag  instituta 
sunt  in  alios  usus  convertere  absque  expressa  liceutia 
Sedis  Apostolicae  et  ordinarii  loci,  nisi  ag^atur  de 
conversione,  quae,  salvis  fundationis  leg'.ibus,  refer- 
atur  dumtaxat  ad  internum  reg^imen  et  disciplinam 
regularem." 

303.  The  soliciting-  of  alms  is  a  matter  which  causes 
much  vexation  and  scandal.  The  diocesan  bishop 
alone  has  the  right  to  issue  permits  to  collect  alms. 
But  for  the  regular  mendicant  orders  this  permission 
is  not  required  for  convents  existing'  in  the  diocese. 
(S.  C.  Ep.  in  Casal.  6  Oct.  isqS.)  Nevertheless 
the  bishop  can  forbid  by  edict  or  otherwise  any  and 
all  religious  from  begging*  or  seeking  alms  unless 
they  first  show  the  written  permission  of  their 
superior  countersig^ned  by  the  bishop.  (C/.  Mo)ia- 
celli,  T.  /,  t.  6,  f.  6,  n.  8 ;  S,  C ,  C .  in  Theat.  jo 
Af>r.  1 6^8.)  Moreover  these  religious  must  them- 
selves collect  alms  and  cannot  employ  seculars  or 
others  for  the  purpose.     CS.  C.  C.  pluriesdeclaravit.) 

304.  When  others  besides  religious  of  the  mendi- 
cant orders  collect  alms,  they  may  not  participate  in 
the  alms  thus  collected,  {S.  C.  C.  teste  Fagnano) 
but  must  have  a  stipend*  from  some  other  source. 
Further  all  scandalous  methods  must  be  avoided. 
Hence,  if  the  collectors  use  threats,  imprecations 
blessings  or  special  prayers,  or  distribute  statues  or 
sacred  things,  or  offer  privileg"es,  the  bishop  may 
severely  chastise  them  even  though  they  are  laymen 
or  exempt  religious.  He  may  even  excommunicate 
them.  {Cf.  Barbosa  de  off,  Ep,  all.  log^  n.  12; 
Monacelli  I.  c.  n.  5. 

305.  Regular  permission  to  collect  alms  is  given 


SOI^ICITING    ALMS.  283 

only  to  asylums  or  hospitals  in  which  orphans  and 
the  poor  are  actually  supported.  Nevertheless 
to-day  other  institutions  dointr  charitable  work  and 
unable  from  their  endowment  to  pay  all  their  ex- 
penses are  sometimes  ^iven  permission  by  the  bishop 
to  solicit  alms.  If  the  needy  institutions  are  in 
charg^e  of  sisters,  or  penitents,  it  is  not  allowed  for 
them  to  personally  solicit  alms,  but  as  ordered  by 
Pope  Greg'ory  XIII  {Const,  impressa  in  Bull.  ?toi'o, 
t.  2,  n.  8)  they  are  to  remain  in  their  convents  and 
deputies  appointed  by  the  ordinary  of  the  place  are 
with  his  permission  to  solicit  alms  for  them.  Alms 
mean  a  free  offeringf,  not  an  assessment.  Assess- 
ments cannot  be  levied  for  the  benefit  of  charitable 
institutions;  but  voluntar}^  collections  may  be  ordered 
by  the  bishop  in  his  judofment  and  pastors  are 
oblig'ed  to  announce  them. 

306.  Rio-htly  then  did  the  Third  Council  of  Balti- 
more n.  95,  severely  condemn  the  abuse  of  sisters  or 
nuns  g'oing'  around  soliciting-  alms  often  far  from 
their  convents  and  wnth  g^reat  dang^er  of  scandal. 
It  further  prohibited  sisters  and  also  lay  brothers 
from  collecting'  without  the  written  permission  of 
the  diocesan  ordinary.  Again  in  n.  295-296  the 
same  council  denounced  the  practice  of  secular  and 
reg^ular  priests  coming*  from  other  countries  to  col- 
lect alms  often  without  previous  permission  and  in 
spite  of  the  ordinary  of  the  diocese  and  the  rectors  of 
parishes.  It  declared  the  soliciting*  of  alms  with  the 
promise  of  masses  or  such  like  an  intolerable  abuse, 
and  vehemently  reproved  and  prohibited  the  practice 
of  sending*  circulars  or  cards  offering*  masses  for  all 
who  contribute  to  the  building*  of  a  church,  convent, 


284  LEGAL    FORMULARY. 

hospital  or  other  institution.  Thus  it  appears  that 
the  law  g^uards  agfainst  scandal,  even  though  prac- 
tice in  some  instances  is  diametrically  opposed  to  the 
canons. 

307.   Following  is  a  form  for  permitting*  the  col- 
lecting of  alms: 

*'N.  Bishop  of  N.     To  &c. 
You,  who  are  of  good  life  and  approved  piety  and 

who  are  deputed  by  the  officials  of  the  asylum  of 

in  our  diocese,  are  hereby  granted  permission  to 
solicit  alms  throughout  our  whole  diocese  for  the 
support  of  the  said  asylum  whose  revenues  are  not 
sufficient  for  the  purpose;  provided  you  do  so  mod- 
destly  and  without  threat  or  fraud  or  any  publishing 
of  masses  or  favors,  and  provided  all  the  money  or 
alms  which  you  may  collect  shall  be  used  for  the 
support  of  the  said  asylum,  concerning  which  the 
officials  will  render  Us  an  account  during  our  visita- 
tion.    This   permission    will  last  until   and  is 

given  gratuitously.  In  testimony  whereof  &c. 
Given  &c. 

N.  Bishop  of  N.  (or  Vicar  General.) 

N.  N.  Chancellor.'' 


CHAPTER   XL 

THE    AT^IENATION   OF    CHURCH    PROPERTY. 

308.  The  g'oods  of  the  church  are  the  patrlmon}^  of 
Christ;  and  ecclesiastical  persons  have  only  the  use 
of  church  property.  The  real  title  or  ownership  is 
in  the  church,  not  in  prelates  who  have  only  the 
administration  of  it.  Where  the  church  is  not  rec- 
ognized as  a  corporation  before  the  civil  law,  the 
civil  title  to  church  property  should  be  placed  not  in 
any  individual  as  such,  but  in  a  corporation  recog*- 
nixed  by  both  church  and  state.  In  the  whole  United 
States,  so  far  as  the  state  is  concerned,  there  is  no 
need  of  any  bishop  holding*  church  property  in  fee 
simple  in  his  individual  name;  for  incorporation  has 
never  been  refused  and  may  easily  be  obtained.  In 
Maryland,  Massachusetts,  Kentuck}^  Illinois,  Cali- 
fornia, the  bishops  are  incorporated  b}^  state  laws  as 
a  "corporation  sole."  In  Ohio,  Indiana,  Missouri, 
Iowa,  the  property  is  held  by  bishops  who  are  recog-- 
nized  before  the  civil  law  as  trustees.  In  New  York, 
Wisconsin,  Minnesota,  North  and  South  Dakota  the 
property  is  held  by  a  corporation  consisting-  of  the 
bishop,  his  vicar  g-eneral,  the  pastor  and  two  laymen, 
there  being-  a  separate  corporation  for  each  parish. 
This  last  system  seems  most  in  accordance  with 
canon  law,  and  best  adapted  to  prevent  the  mixture 
of  diocesan  and  parish  property,  which  mixture  is 
prohibited  by  the  sacred  canons.     It  also  approaches 

255 


286  LEGAL    FORMULARY. 

nearest  the  plan  of  the  chapter  holding-  under  the  old 
system,  making-  the  tenure  perpetual. 

309.  In  Michig-an  a  ver\-  anomalous  condition 
exists.  The  bishops  claim  to  hold  most  of  church 
property  in  absolute  fee  simple  as  individuals.  The 
diocesan  regfulations — not  the  statutes — require  the 
deed  to  be  made  without  any  trust  appearing-  on  its 
face.  The  Michig-an  statutes  prohibit  parole  testi- 
mony to  prove  a  trust  in  a  deed  on  whose  face  no 
trust  is  shown.  But  it  was  supposed  that  statute 
4727,  Howell's,  passed  in  1867,  could  be  made  apply 
to  save  church  property  from  passing  to  the  bishop's 
heirs,  and  possibly  parole  evidence  mig-ht  be  intro- 
duced to  show  a  trust  in  the  holding-  of  the  bishop. 
However,  this  statute,  placing-  in  each  of  the  Roman 
Catholic  bishops  a  trust  title,  while  never  used  by 
the  bishops,  nevertheless  has  been  quoted  ag-ainst 
them  in  favor  of  cong-reg-ations  when  disobeying*  the 
injunctions  of  the  bishop.  Hence  the  dang-er  of 
diverting-  parish  property  ag-ainst  the  will  of  the 
bishop  is  increased,  for  the  bishop  actually  holds 
neither  in  fee  simple  as  absolute  owner,  nor  yet  with 
such  powers  of  trusteeship  as  to  prevent  any  layman 
of  the  parish  from  leg'ally  interfering-.  In  1897  a 
most  liberal  law  was  passed  for  incorporating- 
churches,  under  section  four  of  which  the  church  it- 
self may  arrang-e  the  tenure  of  its  property  and 
select  its  own  members, for  the  corporation.  Under 
this  law  a  diocesan  corporation  and  distinct  parish 
corporations  may  be  had. 

310.  The  fee  simple  tenure  of  church  property 
seems  unsafe,  unnecessary  and  unwise.  Further  it  is 
ag-ainst  the  sacred  canons,  for  it  is  an  actual  wholesale 


TENURK  OK  CHURCH  PROPERTY.       287 

alienation,  for  which  there  can  be  g^iven  at  present 
no  satisfactory  reason.  That  it  has  been  done  in 
the  past  is  no  reason  for  the  future.  In  fact  the  Holy 
See  has  lately  been  insisting-  on  a  changfe  from  the  fee 
simple  tenure,  and  moreover  has  explicitly-  indicated 
that  achang-e  isconiinor,  foronJan.ll,  1897,  in  decid- 
ing- a  Detroit  property  case  it  added  these  words: 
"This  same  decision  shall  remain  in  force  when  the 
administration  of  the  diocesan  funds  shall  pass  to  a 
corporation  to  be  eventually  established  for  the  hold- 
ing* of  the  property  appertaining-  to  the  diocese." 

311.  If  at  any  time  it  is  necessary  or  very  useful 
to  alienate  a  certain  piece  of  church  property,  or  ex- 
chang-e  it  for  another,  such  alienation  must  be  made 
in  accordance  with  canon  law,  otherwise  the  benefi- 
ciary and  other  administrators  concerned  in  the 
alienation  are /7^6o/«c/<7 excommunicated.  (C/.  Const. 
Apost.  Sedis.)  Under  the  head  of  church  property 
comes  the  property  not  only  of  churches,  but  of  all 
relig"ious  and  pious  places  which  have  been  founded 
for  the  worship  of  God,  the  salvation  of  souls  or  the 
care  of  the  sick  or  the  poor.  Further,  under  the 
head  of  alienation  comes  every  kind  of  contract,  gift 
or  changfe,  compromise,  union  with  another  church, 
mortg-ag-e,  renting-  for  more  than  three  years,  or  any 
other  species  of  transfer.  B}'  the  apostolic  constitu- 
tion, Afostolicce  Sedis,  all  alienation  is  prohibited. 
An  exception  is  made  for  thingrs  of  trifling  value  and 
such  as  are  useless  to  the  church  because  of  the  ex- 
pense entailed. 

312.  But  all  kinds  of  propert}'  may  be  alienated 
if  there  is  a  sufficient  reason  and  the  proper 
solemnities  are  observed.     A  sufficient  cause  would 


288  LEGAL    FORMULARY. 

be,  necessity,  utilit}'  or  piety.  The  solemnities  re- 
quired are,  the  consent  of  the  cathedral  chapter,  or 
in  the  United  States  the  advice  of  the  consultors 
gfiven  as  a  coUeg-iate  body;  and  second  the  authority 
of  the  Pope  in  each  case  where  the  sum  exceeds  fifty 
dollars.  In  the  United  States  the  bishops  have  re- 
ceived special  faculties  by  which  they  need  not  ask 
permission  of  the  Holy  See  in  each  individual  case 
of  alienation;  but  it  is  distinctly  stated  that  they 
can  use  these  faculties  only  on  condition  that  for 
each  case  the  necessity  or  evident  utility  for  the 
church  must  become  apparent  to  the  bishop  zvith  the 
advice  of  the  diocesan  consultors^  and  that  at  the 
end  of  every  third  year  the  bishop  must  report  each 
case  and  the  financial  condition  of  the  church  inter- 
ested. The  passao-e,  therefore,  of  decree  20,  pag-e 
15,  of  the  Third  Council  of  Baltimore  which  says 
that  the  bishops  need  not  ask  the  advice  of  their 
consultors  when  the  sum  does  not  reach  $5,000,  must 
be  held  inoperative  when  compared  with  the  faculty 
which  the  Holy  See  really  g-ave  the  bishops  and  in 
which  no  such  exception  is  made.  The  bishops 
could  not  dispense  themselves  from  obeying;-  the  com- 
mon law  of  the  church.  We  hold,  therefore, 
that  no  bishop,  in  view  of  his  special  faculties  can 
alienate  any  church  property  over  $50  ( Vi  canonis 
Terriilas)  without  the  advice  of  his  consultors  gfiven 
as  a  colleg"iate  body,  which  advice  must  be  asked  for 
each   case.     These   are   the    words    of    the    faculty: 

" Facultates     extraordinarise    tribuuntur;     ea 

tavien  leg'e,  ut  f>rcBdictH  facilitate  iitantur  iepiscopi) 
perspecta  prius  ex  consultoriun  concilia  necessitate 
vel evidenti  titililate  ecclesice^  utque  in  fine  cujuslibet 


INSTRUCTIONS    FOR    ALIENATING.  289 

trientiii  episcopi  ad  S.  Cong-,  referant  quibus  in 
casibus,  et  pro  quibus  summis,  ea  usi  sint,  exposita 
etiam  statu  oeconomico  illarum  missionum  pro  quibus 
aes  alienum  contractum  fuit. "  (C/.  ///  Coyic.  Ball, 
-pg".  ciii.)  Hence  it  appears  the  alienation  of  church 
property  is  more  serious  than  ordinarily  supposed. 

313.  Following-  is  the  instruction  which  the  S. 
Cong-regation  of  the  Propaganda  gave  on  Jul\^  30, 
1867,  regarding  the  alienation  of  church  property: 

1°.  In  venditione  bonoruni  ecclesiasticoruni,  prae- 
mittatur  eorumdem  a^stiniatio  a  probis  peritis  scripto 
facienda;  audiantur  omnes  interesse  habentes;  con- 
stet  de  evidenti  Kcclesiae  necessitate  vel  utilitate; 
vendantur  favore  maioris  oblatoris  et  non  minori 
pretio  quam  quod  a  prsedictis  peritis  fuerit  a^sti- 
niatum;  pretium  ab  emptore  integre  solvatur  in  actu 
stipulationis,  et  collocetur  in  frugifero,  tuto  ac  licito 
investimento;  quod  si  non  erit  in  promptu,  deponatur 
pretium  in  aliqua  capsa  publica,  vel  apud  aliquam 
personam  spectator  probitatis  et  idoneitatis,  recepta 
tamen  cautione  scripto  exarata,  penes  ipsum  Patri- 
archam  vel  Rpiscopum  ecclesise,  ad  quam  pertinent 
bona  vendita,  accuratissime  custodienda. 

314.  2^.  In  permutationibus  pra^mittatur  a?sti- 
matio  fundorum  a  probis  peritis  scripto  facienda; 
audiantur  omnes  interesse  habentes;  constet  de  evi- 
denti Ecclesise  utilitate;  et  in  contractus  stipulatione 
expresse  reservetur  hinc  inde  regfressus  ad  priman-a 
iura  in  casu  evictionis.  Quod  si  valor  fundi  ecclesi- 
astici  superet  valorem  fundi  qui  ab  ecclesia  in  per- 
mutationem  recipitur,  ea  pecuniae  vis  qufE  ad  pera?- 
quationem  contractus  est  necessaria,  ecclesia  persol- 
vatur  in  actu  stipulationis,  et  collocetur  in  honesto, 
tuto  ac  licito  investimento:  atque  interim  deponatur 
uti  supra  in  capsa  publica,  vel  apud  personam  spec- 
tatse  probitatis  atque  idoneitatis. 

315.  3°  In   contractibus    emphyteuticis    ineundis 

38 


290  I^EGAL    FORMULARY. 

praemittatur  aestimatio  peritorum;  audiantur  omnes 
interesse  habeutes;  constet  de  evident!  Ecclesiae  util- 
itate;  canon  ab  emphyteuta  persolvendus  non  sit 
minor,  quam  qui  a  peritis  statutus  fuerit;  stipulatio 
scripto  consig"netur  cui  descriptio  fundi  ac  topo- 
graphica  eiusdem  tabula  adiiciatur;  praestet  emphy- 
teuta hypothecariam  inscriptionem  super  alio  idoneo 
suo  fundo,  aut  saltem  hoc  deficiente  cautionem  idon- 
earum  personarum  pro  securitate  canonum  trium 
annorum;  atque  in  ipsa  stipulatione  obligationem 
emittat  pro  se  suisque  heredibus  ac  successoribus 
valituram,  nunquam  utendi  qualibet  praesenti  vel 
futura  lege  seu  privileg"io  afFrancationis  canonis,  et 
melioramenta  omnia  solo  cedendi. 

316.  4°.  Si  ag-atur  de  Ecclesiae  bonis  oppignor- 
andis,  vel  de  aere  alieno  contrahendo,  necesse  est,  ut 
prius  audiantur  omnes  interesse  habentes,  et  constet 
de  vera  et  gravi  Ecclesiae  necessitate;  quae  si  vere 
intercedat,  cavendum  est,  ut  debitum  illud,  cum 
primum  fieri  poterit,  ecclesia  ipsa  diniittat,  eaque  de 
causa  imponatur  eidem  singulis  in  casibus  obligatio 
contractum  debitum  extinguendi  annuis  ratis  ab  ipso 
Episcopo  praeiiniendis;  ad  quem  effectum  deter- 
minati  aliqui  ecclesiae  eiusdem  redditus  erunt  assig- 
nandi,  ac  singulis  vicibus  deponendi  in  capsa  publica, 
vel  penes  honestam  atque  idoneam  personam,  ut  suo 
tempore  investiri  possint. 

317.  5^.  Cum  vero  Ecclesiae  pecuniam  investiri 
contingat,  duo  imprimisdiligentissime  curanda  erunt; 
primum  ut  a  contractibus  ineundis  longe  procul  sit 
quaevis  usuraria  labes,  secundo  ut  Ecclesiae  indem- 
nitati  cautum  sit;  ideoque  non  coUocetur  eiusdem 
pecunia  nisi  apud  honestas  et  idoneas  personas,  quae 
praestent  hypotecariam  inscriptionem,  vel  saltem 
idoneam  cautionem;  omnesque  huiusmodi  contractus 
publicis  tabulis  pro  recepto  regionum  more 
consignentur. 

318.  6^.  Denique  in  locationibus  bonorum  ecclesi- 
asticornm  cavendum  est,  ut  locationes  praedictae  fiant 


METHOD   OF    ALIENATING.  291 

iusto  pretio,  atque  ut  annuae  responsionis  solutio  non 
fiat  anticipate  in  pra^iudicium  successorum.  Non 
licebit  autem  ecclesiastica  bona  locare  ultra  trien- 
nium:  poterit  autem  Ordinarius,  si  specialem  ab 
Apostolica  Sede  super  alienatione  bonorum  ecclesias- 
ticoruni  facultatem  obtinuerit,  permittere  ut  loca- 
tiones  pra^dicta^  iiant  etiam  ultra  praedictum  tenipus, 
dummodo  nori  excedat  novennium. 

319.  When  church  property  is  let  for  not  more 
than  three  years,  the  pastors  of  the  various  con«-re- 
g^ations  have  the  manag*ement  and  letting-  of  what 
belong"s  to  their  respective  con«"reg'ations  or  parishes, 
and  the  superiors  or  oflficials  of  pious  places  or  char- 
itable institutions  have  respectively  the  letting-  of 
their  property.  (S.  C.  EE.  et  RR.  plurics  declar- 
avit,  teste  Pig'natello.^  Hence,  says  Monacelli,  they 
ma3%  if  there  is  no  fraud  or  collusion,  validly  and 
licitely  make  contracts  reg^arding*  rent  for  not  more 
than  three  3^ears  without  the  permission  of  the 
bishop,  is.  a  EE.  et  RR.  in  CastcII.  27  Feb. 
i6gj;  in  Bonon.  4.  Mar.  i6g4..)  Property  let  out  for 
long^er  time  than  three  years  requires  the  beneplaci- 
tuni  apostolicum,  or  in  the  United  States  the  consent 
of  the  bishop  using-  his  extraordinary  special  faculty 
as  delegate  of  the  Holy  See  with  the  advice  of  the 
consultors.  But  the  bishop  may  not  g-ive  permission 
that  it  be  let  for  more  than  nine  years. 

320.  It  should  be  noted  that  property  left  to  a 
church  or  other  pious  place  erected  b}^  authority  of 
the  bishop,  cannot  be  alienated  without  the  permis- 
sion of  Rome,  even  thoug'h  the  testator  so  specified 
in  his  will.  (C/.  Auctores  multos  ap2(d  Moiiacelli 
T.  /,  /.  5,  /.  75,  }}.  ig-22.)  Neither  can  a  compro- 
mise be  eflfected  reg^arding-  the  supposed  rigdits  of  a 


292  LEGAL    FORMULARY. 

church  to  certain  property  without  the  sanction  of 
the  Holy  See.  {Cf.  S.  C.  C.  Aiiscul.  14  Feb.  i6gg.) 
Further  it  should  be  noted  that  not  only  reg-ulars 
but  also  other  rectors  who  alienate  precious  movable 
^oods  of  the  church  incur  excommunication,  if  they 
do  this  without  the  beneplacitum  apostolicum,  not- 
withstanding- their  gfood  faith  or  permission  of  the 
g-eneral  chapter  of  the  order.  {Cf.  S.  C.  C.  in  Seg-i- 
nen.  16  Ma)-.  i6g2.)  Neither  can  they  alienate  small 
thing's  vig-ore  capitis  Terriilas  without  the  decree  of 
the  ordinary  of  the  diocese.  {S.  C.  Ef.  in  Tro'pie7i. 
II  Jan.  i6g2.)  These  decisions  which  are  in  full  force 
to-day  may  interest  the  rectors  of  churches,  for  often 
they  find  it  necessary  or  ver}^  useful  to  make  chang^es 
in  the  movable  g^oods  of  their  parishes. 

321.  A  reg-ular  process,  thoug-h  summary,  is  re- 
quired in  the  alienation  of  church  property  even 
thoug-h  this  is  not  specifically  mentioned  in  the 
beneplacitum  apostolicum.  (Rota  decis.  224.  n.  11-12^ 
-par.  io)\  and  the  utility  for  the  church  must  be 
shown  by  judicial  proof,  that  is  by  witnesses  ex- 
amined at  the  instance  of  the  alienating'  church,  who 
testify  to  such  utility  precisely  at  the  time  of  aliena- 
tion. The  mere  assertion  of  the  parties  interested 
or  of  the  bishop  or  executor  of  the  beneplacitum 
apostolicum  is  not  sufficient.  {Rota  decis.  j6.) 
i^Cf.  Mcmacelli,  T.  i,  t.  14,  f.  2,  n.  i .)  The  summary 
process  as  g-iven  in  chapter   18  below  may  be  used. 

322.  The  permission  g-iven  by  the  Holy  See  for 
alienating-  church  property  is  always  called  a  bene- 
placitum apostolicum,  whether  g-iven  by  the  Datary, 
the  Sacred  Cong-reg-ation  of  the  Council,  or  the 
Sacred    Propaganda.      When   issued   by  the  bishops 


DECREE    FOR    ALIENATION.  2^3 

of  the  United  States,  by  virtue  of  their  special  fac- 
ulties, it  may  also  be  called  a  beneplacitum  apos- 
tolicum.  It  is  evident  that  when  a  parish  church  or 
pious  place  is  to  alienate  property,  the  beneplacitum 
must  be  obtained  in  writing-  from  the  bishop,  who 
having  received  the  testimony  of  witnesses,  and 
heard  all  those  interested,  after  takinof  the  advice  of 
his  consultors  in  each  case,  will  issue  a  decree  in 
proper  form.     (See  note  2  on  page  297.) 

323.  The  delegated  judges  or  commissaries  to 
whom  is  intrusted  the  execution  of  apostolic  bene- 
placita  for  the  alienation  of  property  are  warned 
b\^  Pope  Paul  II,  i^Const.  Cimi  in  oinuibus.^  to  cau- 
tiously and  diligently  examine  the  causes  put  forth 
for  the  intended  alienation  and  to  carefully  examine 
the  witnesses  and  proofs,  putting-  aside  all  fear  and 
favor  and  having  only  God  before  their  eyes.  The 
permission  given  b}^  the  Hol}^  See  is  always  condi- 
tional, and  therefore  the  executor  must  alwa^'s 
verify  the  truth  of  the  statements  made  in  the  appli- 
cation for  the  favor.  Care  should  be  taken  to  see 
that  the  money  received  for  the  property  is  carefull}^ 
guarded  or  invested. 

324.  When  the  bishop  by  virtue  of  his  ordinary 
power  (canon  Terrulas)  grants  permission  for  alien- 
ating- things  of  less  value  than  $50,  he  may  use  this 
form  for  the  decree: 

"Having  considered  the  law  and  the  depositions 
of  witnesses  formally  examined,  by  which  it  appears 
that  the  alienation  of  a  house  (or  other  property)  be- 
longing to  the  church  of  N —  in  the  town  of  N — ,  of 

the  value  of  dollars  (under  fift}^  situated  on 

the  lot  N —  as  mentioned  in  the  process,  will  redound 
to  the  evident  utility  of  the  said  church;  having  also 


294  IvEGAIv   FORMULARY. 

heard  those  claiming'  an  interest  in  the  matter,  We 
say  and  pronounce  that  there  is  place  for  the  desired 
alienation,  and  therefore  by  the  ordinary  authority 
g-iven  Us  by  law,  We  grant  permission .  to  N.  N.  to 
alienate    the    aforesaid    house    (or    other    property) 

valued  at dollars  for  the  price  of dollars, 

to  the  effect,  however,  that  the  said  price  thus  re- 
ceived shall  be  all  converted  into and  not  other- 
wise; concerninof  which  re-investment  the  said  N.  N. 

shall  be  charg'ed  and  within days  from  date  of 

alienation  shall  cause  to  be  filed  in  our  chancery 
office  a  certificate  showing-  such  re-investment,  under 
pain  even  of  censures,  to  be  inflicted  at  our  pleasure. 
Given  &c. 

N.  Bishop  of  N.  or  Vicar  General. 
N.  B.  Bishop's  Chancellor." 

325.  When  the  bishop  by  virtue  of  his  special  fac- 
ulty as  deleg-ate  of  the  Holy  See  g-ives  a  beneplaci- 
tum  or  permission  to  alienate  church  property  worth 
over  $50,  having-  taken  the  colleg-iate  advice  of  his 
consultors  and  complied  with  the  other  requirements 
of  the  decrees  of  the  Propag-anda  mentioned  above, 
he  may  issue  a  decree  of  alienation  as  follows,  always 
specifying-  what  disposition  is  to  be  made  of  the  price 
received: 

"Having-  seen  the  acts  and  the  process  constructed 
thereon,  and  especially  considering-  the  reports  of  the 
estimators  who  valued  the  property  and  the  testi- 
mony of  the  witnesses  who  were  specially  examined, 
from  whose  depositions  it  appears  that  an  alienation 
by  sale  (exchang-e,  emphyteusis,  loan  for  over  three 
years)  of  the  lots  (describe  property  exactly)  which 
are  valued  at  —  dollars,  will  be  for  the  evident  utility 
of  the  church  of  N —  to  which  the  aforesaid  property 
belongs;  having- also  heard  all  tliose  having- an  inter- 
est in  said   property,  We  say  and  declare  that  there 


DECREE    P'OR    ALIENATION.  295 

is  place  for  the  alienation  of  the  aforesaid  property; 
and  therefore  having"  taken  the  advice  of  our  diocesan 
consultors  in  this  matter,  by  virtue  of  the  special 
apostolic  facult}'  ""ranted  Us  for  —  years  by  the  Holy 

See  on day  of A.  D.  We  hereby  g-raut 

permission  and  declare  it  permitted  for  N.  N.  the 
rector  of  the  church  of  N —  (or  other  person)  to 
alienate  the  aforementioned  property  for  the  price  of 
—  dollars,  to  the  effect,  however,  that  the  said  price 
shall  be  wholly  re-invested   (converted  or  otherwise) 

into (mention  exactly  v^^hat)  as  was  petitioned 

and  as  in  the  acts,  and  not  otherwise;  concerning 
which  re-investment  the  said  N.  N.  rector  of  N —  (or 
other  person)  within  —  da3^s  from  the  date  of  aliena- 
tion shall  cause  to  be  filed  in  our  chancery  office  a 
certificate  showing"  such  re-investment,  under  pain 
even  of  censures,  to  be  inflicted  at  our  pleasure. 
And  thus  We  g-rant  permission  for  the  alienation, 
omni  meliori  modo.  In  testimony  w^hereof  &c. 
Given  &c. 

[l.  s.]  N.  Bishop  of  N — ,  Delegate. 

N.  N.  Bishop's  Chancellor." 

326.  When  a  church  has  become  so  dilapidated 
that  it  should  be  torn  down,  the  bishop  in  his  visita- 
tion ma}^  use  the  following  decree  for  the  purpose: 

"On  the  —  day  of  —  A.  D.  —  the  Most  Reverend 
N.  Bishop  of  N —  visiting  the  church  of  St.  N —  sit- 
ated  in  N —  in  this  diocese  found  it  almost  destro3'ed 
and  destitute  of  sacred  furniture;  and  not  finding" 
anyone  whom  by  law  he  could  oblige  to  repair  it  and 
there  being  no  other  way  to  restore  it;  having  re- 
moved the  sacred  images,  and  taken  up  the  conse- 
crated altar  stone,  and  workmen  having  removed  the 
altars,  by  the  facult}"  and  authority  conferred  upon 
him  both  by  law  and  the  holy  council  of  Trent, 
granted  permission  to  N.  N.  to  profane  the  said 
church  and  to  convert  its  stones  and  other  material 


2%  LEGAIv    FORMULARY. 

to  the  use  of  — ,  a  cross  being"  erected  on  the  church 
site.     In  testimony  whereof  &c.     Given  &c. 

N.  N.  Notary  and  Actuary  of  Visitation." 

In  such  case  the  reg'ular  process  of  alienation  must 
be  used  before  the  site  or  land  is  sold  or  exchang-ed. 

327.  It  may  not  be  out  of  place  to  mention  the  law 
re^^'arding"  the  changfe  of  a  cathedral  church.  When 
a  bishop  wishes  to  transfer  his  cathedral  from  one 
city  to  another,  the  explicit  consent  of  the  Holy  See 
is  required.  But  is  certain  that  a  bishop  with  the 
consent  of  his  chapter  can  transfer  his  cathedral 
church  from  one  place  in  the  city  to  another,  even  if 
betterment  or  preference  is  the  only  cause.  For 
such  transfer  no  permission  of  the  Holy  See  is  neces- 
sary. (6/.  Can.  Si  qiiis  vitlt  i6,  g,  y ;  Glossa  in 
can.  Tribics  distinct,  ^riina^  verbo,  Difficultas,  in 
fine  dc  consecra.  Et  tradunt  Mandos.  de  Sig'natura 
Graticc,  tit.  de  trans,  col.  2,  j,  vers.  %Translatio 
EcclcsicE;  Rebuff  .in  praxi  tit.  de  Trans,  episc.  n.  y; 
Lotter.  de  re  bene/.  I.  i ,  q.  12,  n.  6;  Prances^  de 
Eccl.  Cathed.  c.  y.  n.  27,  28,  ^/,  ^2,  et  prcesertim  70, 
y^ ;  Respo7idit  etiam  Rota  decis.  yo^^  n.  12,  -p.  4,  re- 
cent.  torn,  j;  iterum,  Placentina  Cat  lied.  22  Jnnii, 
lyoj.)  It  is  also  certain  that  such  a  chang'e  and 
transfer  having*  been  made,  all  the  rig-hts  and  all  the 
qualities  of  cathedrality  previously  existing*  in  the 
cathedral  church  from  which  the  transfer  is  made, 
g-o  over  and  thereafter  belong*  to  the  church  to  which 
the  transfer  has  been  effected.  {Cf.  Gloss,  in  cap. 
Privilegiuni^  vers,  ^itod  die  veruni,  de  reg:  jur.  in 
6"",  Innocent,  in  cap.  2.  n.  2 :  ibiqne  Fagnaii.  n.  lo, 
de  Nov.  oper.  niinciat,  et  idem  Innocent,  in  cap.  /,  in 
princeip.  vers.  Si  vera  de  uno,  ne  sede  vacant;  Grat. 


CHANGING    CATHEDRAL.  2^7 

disceft.  2C)i ,  n.  1  ei  seq;  Prances  de  Eccl.  Cath.  c. 
7,  n.  59,  et  seq;  Rota,  coram  Seraph,  decis.  i i4g,  n. 
i6\  Coram  Poen.  decis,  i ij,  n.  6,  et  decis.  t6j,  n.  j; 
Coram  Liidovis.  decis.  66 j,  ii.  7;  Coram  Bicli.  decis. 
gg^,  71.  /j;  Cora7n  Dtinoy,  decis,  ig6,  n.  16,  ly  par. 
ig  Recent;  Placent.  coram  Molines,  22  Junii  lyoj.) 
This  last  decision  specifically  says  that  when  the 
transfer  of  the  bishop's  chair  is  from  one  material 
church  to  another  in  the  same  city,  no  apostolic  in- 
dult  is  required. 

However  the  transfer  does  not  aflFect  the  property 
rig-hts  of  the  two  churches.  The  transfer  of  the 
bishop's  chair  from  one  church  to  another  cannot 
alienate  the  property  of  the  former  cathedral  in  favor 
of  the  new  one. 

Note. — In  England  Catholic  diocesan  property  is  held  by  private 
individuals  known  as  trustees,  viz.,  the  bishop  of  the  diocese  and 
four  or  five  individuals  chosen  by  him.  Bishops,  as  such,  are  not 
recognized  by  the  civil  law,  but  only  as  individuals.  Parish  prop- 
erty is  held  also  in  the  names  of  several  individuals  as  trustees. 

Note.  2. — Diocesan  consultors  are  selected  for  a  term  of  three 
years.  They  go  out  of  office  by  limitation,  unless  the  triennial 
term  expires  during  a  vacancy  in  the  episcopal  see.  Attention 
should  be  paid  to  this  point  in  the  matter  of  alienating  property. 
If  a  bishop  is  transferred  by  Brief  dated  before  the  triennial  term 
expires,  the  consultors  hold  over,  even  though  notice  is  received 
only  later.  But  if  the  consultors'  term  expired  before  the  date  of 
the  Brief  of  transfer  and  the  bishop  had  neglected  to  select  new 
consultors  before  the  transfer,  then  the  selecting  of  consultors 
devolves  on  the  Metropolitan,  who  will  follow  the  same  method  of 
selecting  as  the  bishop  should  have  followed.  {Cf.  L.  1.  t.  10,  decret. 
De  Supplenda  uer/Ugentia  praelatorum.)  From  the  exact  date  of 
transfer  the  bishop  loses  all  jurisdiction.  Similar  is  the  case  of 
the  triennial  term  expiring  before  a  bishop's  death  without  a  new 
selection.  The  old  consultors  are  then  no  longer  in  ofiice. 
39 


PART  THIRD, 


Trials  and  Punishments. 


CHAPTER  I. 

PRELIMINARY     INVESTIGATION,     FORMS     FOR     MONI- 
TIONS,   PRECEPT,    JUDGE,    AUDITOR. 

328.  The  ordinary  judge  in  all  ecclesiastical  trials 
is  the  bishop  of  the  diocese  or  his  vicar  general.  An 
actuary  is  required  for  each  trial.  The  forms  for 
appointing  the  vicar  general  and  the  actuary  or 
notary  as  well  as  other  officials  are  given  in  the  first 
part  of  this  work.  Trials  are  of  two  kinds,  criminal 
and  civil.  Many  of  the  forms  used  in  the  criminal 
process  are  applicable  also  to  the  civil.  Hence,  fol- 
lowing the  late  instruction  "Cum  magnopere"  for 
the  trial  of  criminal  and  disciplinary  causes  of  eccle- 
siastics, we  shall  give  first   the  forms  needed  in  this 

298 


PREVENTIVE   REMEDIES.  299 

process,  and  then  add  those  which  are  special  to  the 
civil  process. 

329.  The  instruction  "Cum  ma^nopere"  says  it 
is  the  dut}^  of  the  bishop  to  see  that  discipline  is  pre- 
served in  the  clerg-y,  and  lays  down  two  kinds  of 
remedies  for  that  purpose,  preventive  and  repressive. 
For  inflicting-  the  former  only  an  extrajudicial 
process  is  required,  but  for  the  latter  a  summary 
judicial  process.  The  preventive  remedies  are 
chiefly  spiritual  exercises,  admonitions  and  the  pre- 
cept. But  since  a  cleric  may  appeal  or  make  re- 
course also  from  an  extrajudicial  g-rievance,  it  will 
be  prudent  for  a  bishop  always  to  have  in  writing- 
sufficient  evidence  to  sustain  the  infliction  even  of 
preventive  remedies.  Hence  the  instruction  says 
that  before  inflicting-  even  preventive  punishment  a 
summary  investig-ation  and  record  should  be  made. 
This  does  not  pertain  to  the  fiscal  procurator,  but 
rather  to  the  bishop  himself  or  the  vicar  g-eneral,  as 
father  and  ruler  of  the  diocese,  not  as  judg-e. 

330.  When  a  cleric  has  committed  even  a  serious 
fault,  if  he  repents,  often  the  only  punishment  re- 
quired is  one  of  the  preventive  remedies.  In  fact  a 
prudent  bishop  will  abstain  as  long-  as  possible  from 
a  reg-ular  judicial  process  and  the  repressive  punish- 
ments, to  prevent  scandal  and  save  the  unfortunate 
clerg-yman.  The  practice  of  putting  prominent  men 
on  trial  without  sufficient  proof  obtained  in  advance, 
cannot  be  too  strong-ly  denounced  because  of  its  g-reat 
detriment  to  relig-ion  and  to  the  person  injured. 
For  this  reason  to-day,  no  matter  who  makes  the 
charg-es,  the  bishop  is  held  responsible  for  every 
criminal  trial,  and  it  must  be  beg-un  by  him  ex  officio, 


300  LEGAL  Formulary. 

as  the  instruction  clearly  states.  In  making-  the 
extrajudicial  investig-ation  great  prudence  is  required, 
so  as  not  to  stir  up  scandal,  or  injure  anyone's  repu- 
tation, for  not  unfrequently  malicious  charg*es  and 
reports  are  sent  to  the  bishop  concerning  priests. 
The  bishop  may  speak  to  the  accused  priest  pater- 
nally pending  the  extrajudicial  investigation,  but  he 
cannot  cite  him  to  appear. 

331.  The  admonitions  may  be  made  secretly  by  a 
reg-istered  letter  or  through  some  person,  but  a 
record  of  them  should  be  kept,  or  again  they  may  be 
made  in  a  legal  form  served  by  the  court  messeng^er. 
They  should  contain  no  threat.  Follow^ing-  is  a  form 
for  the  two  paternal  warning's: 

''To  the  Rev.  N.  N.  of  N—  in  the  diocese  of  N— . 
For  your  own  sake  and  the  g^ood  of  religion  We  find 
it  necessary,  as  your  bishop,  in  a  paternal  manner  to 
admonish  you  to  practice  sobriety  and  to  cease  fre- 
quenting places  w^here  liquor  is  sold  and   especially 

.     We  also  call  your  attention  to  your  oblig^ation 

of  celebrating-  with  proper  preparation  mass  on  Sun- 
da^^s  and  holy  days  of  obligation,  so  that  the  people 
of  your  mission  may  assist  thereat.     We  hope  this 
(secondj  admonition  will  be  effective.     Dated  &c. 
[L.  s.]  N.  Bishop  of  N." 

332.  If  even  the  second  canonical  warning  is  not 
effective,  the  ordinary  through  the  curia  will  issue  to 
the  delinquent  a  legal  and  formal  precept  as  to  what 
he  must  do  or  avoid;  and  specific  punishment  must 
be  threatened  for  disobedience.  Following-  is  a  form 
for  the  canonical  precept: 

''N.  Bishop  of  N.  to  Rev.  N.  N.  rector  of  N. 
greeting.  Twice  have  We  with  paternal  interest 
admonished   you,    but   without    avail;  and   We   now 


FORM  FOR  CANONICAL  PRECFPT.       301 

formally  enjoin  on  you  that  you  practice  sobriety 
and  cease  frequenting*  places    where  liquor  is  sold 

and  especiall}^ .     We  also  strictly  enjoin  on  you 

not  to  neg'lect  either  personally  or  throug-h  another 
the  celebrating-,  with  proper  preparation,  of  mass  on 
Sunda3^s  and  holy  days  of  oblig-ation,  so  that  the  peo- 
ple of  your  mission  may  assist  thereat.  Further  We 
warn  you  that  any  and  every  disreg^ard  of  this  our 
precept  will  be  punished  by  suspension,  deprivation 
of  the  charg-e  you  now  hold,  and  other  canonical  re- 
pressive remedies.  In  testimon}'  whereof  &c. 
Given  &c. 

[l.  s.]  N.  N.  Bishop  of  N. 

N.  N.  Bishop's  Chancellor." 

"On  this  31st  day  of  May,  A.  D.  1898,  the  above 
precept  was  by  me  served  on  the  Rev.  N.  N.  men- 
tioned therein  who  also  received  it  in  the  presence  of 
the  Very  Rev.  N.  N.  vicar  g^eneral  (or  in  the  pres- 
ence of  N.  N.  and  N.  N.  as  witnesses  summoned  for 
the  purpose.) 

N.  N.  Vicar  General,  or  N.  N.  and  N.  N.  wit- 
nesses ad  hoc. 

Ita  est.     N.  N.  Bishop's  Chancellor." 

333.  This  precept  for  validity  must  be  served  in 
writing-.  If  the  delinquent  will  appear  in  the  chan- 
cery office  it  will  be  served  on  him  by  the  chancellor 
in  the  presence  of  the  vicar  g-eneral  or  of  two  ecclesi- 
astical or  virtuous  lay  witnesses  summoned  for  the 
purpose,  who  may  be  required  under  oath  to  keep 
secret  the  precept  and  its  circumstances.  A  proper 
record  as  g-iven  above  is  made  of  the  service  by  the 
chancellor,  which  is  to  be  sig-ned  also  b}^  the  vicar 
general  or  the  two  witnesses.  This  precept  should 
be  in  duplicate  cop3%  one  for  the  delinquent,  one  to 
be  retained  in  the  chancerv. 

If  the  precept  cannot  be  served  in  the  chancery 


302  LEGAL    FORMULARY. 

office  because  the  delinquent  refuses  to  appear  or  if 
he  cannot  be  found,  the  same  method  for  serving-  it 
may  be  used  as  for  a  citatioa.  E^ven  the  registered 
mail  can  be  employed.  (C/*.  Art.  14,  C?mi  viag-o- 
pere.)  The  form  for  ordering  a  retreat  as  a  preven- 
tive remedy  is  given  below,  n.  480,  in  the  chapter  on 
punishments. 

334.  Since  the  "Cum  magnopere"  was  issued  it  is 
necessary,  as  a  rule,  to  g^ive  the  canonical  admoni- 
tions and  the  formal  precept  and  then  a  trial  before 
repressive  punishments  may  be  inflicted,  whether 
they  be  called  correctional,  medicinal  or  vindictive, 
which  distinctions  are  rather  logical  than  real. 
Where,  however,  the  crime  committed  is  of  great 
enormity,  and  it  is  evident  that  the  delinquent  acted 
with  malice  prepense,  or  also  where  the  greatness  of 
the  scandal  given  requires  it,  the  criminal  trial  may 
be  begun  at  once  by  the  fiscal  procurator  filing  his 
bill  of  complaint  without  the  admonitions  or  formal 
precept  having  been  given  previously  by  the  bishop. 
Such  is  the  general  law,  as  applied  also  by  Art.  XI 
of  the  "Cum  magnopere."  Further,  when  the 
bishop  suspends  ex  informata  conscientia,  neither 
warning,  precept  nor  trial  need  be  g"iven.  But  it  is 
plain  that  in  all  such  cases  the  bishop  assumes  a 
very  grave  additional  responsibility.  Again  in  the 
case  of  censures  which  are  a  jure  et  latce  sentefitice, 
no  previous  precept  or  monition  is  required, 
but  only  a  citation  to  show  cause  why  sentence 
should  not  be  declared.  A  threat  to  a  particular 
person  by  the  ordinary,  that  unless  he  does  a  certain 
thing  before  a  certain  time  he  as  delinquent  will  be 
ipso  facto  suspended  from  office,  although  a  censure 


TRIAL    IS    NECESSARY.  303 

latce  sententice  ah  honiine  is  held  by  some  canonists  to 
be  equivalent  to  a  censure  a  jure  et  latce  sententice, 
in  this  much  that  the  threat  itself  is  a  continual  ad- 
monition. Therefore  they  say  no  further  zvarning^ 
is  required  after  the  lapse  of  the  allotted  time,  but 
only  a  citation  to  the  delinquent  to  appear  and  show 
cause  why  a  sentence  declaratory  of  the  censure 
should  not  be  passed  on  him.  Ag-ainst  such  a  per- 
sonal threat,  an  appeal  when  admitted  by  the  hig-her 
court,  has  a  suspensive  effect.  However,  on  the 
other  hand  it  is  held  that  a  bishop  cannot  even  val- 
idly inflict  by  such  special  sentence  a  correctional 
punishment  or  censure  to  be  incurred  ipso  facto  for 
future  crimes  {Cf.  Smith's  Elem.  )i.  20^1  \  Rota, 
Enchir.  f>g.  277.)  The  citation  to  show  cause  is  to 
be  issued  at  the  instance  of  the  fiscal  procurator, 
who  must  submit  judicial  proof  that  the  censure  was 
incurred,  i.  e.,  that  the  crime  was  committed  or  that 
the  required  work  was  not  performed.  This  in  reality 
IS  the  judicial  process.  {.Cf.  Mojiacclli  Tom.  j,  /.  /, 
f.  I  et  seq.  Vide  etiam,  Reiifensttiel,  I.  5,  t.  jg,  n.  21 , 
2j;  De  Angelis,  h.  tit.  parag-.  j;  Eng-el,  l-  5,  tit-  39 ^ 
n.  9,  Novarrus,  eodem  tit.  co)icil.  g,  )i.  4.)  These 
authors  also  hold  that  the  denunciation  or  declara- 
tion of  a  censure  laid  down  in  law,  or  a  personal 
threatened  suspension  as  above,  is  null  unless  it  is 
preceded  by  a  citation  to  the  delinquent  to  show  cause 
why  it  should  not  be  passed.  {Cf.  Glossa  Clement. 
J,  de  censuris  et  Clement.  2,  de  pee n is.  JValte?-, 
Canon  Lazi\  pg".  2J4.)  One  exception  is  made: 
namely,  when  the  fault  and  the  contumacy 
of  the  unrepentant  delinquent  are  notorious. 
This   notoriety  itself,   however,   must    be  show^n  to 


304  LEGAL    FORMULARY. 

exist  and  cannot  be  presumed.  To  omit  a  citation 
to  show  cause  and  to  plead  notoriety  is  a  dang-erous 
proceeding,  for  as  said  in  Cap.  C onsiiliiit  14,  de  Af>- 
-pell.,  "many  thing's  are  called  notorious  which  really 
are  not  such,  and  therefore  when  denied  they  must 
be  proved."  Consequently,  when  no  citation  is 
issued  to  the  delinquent  to  show  cause  why  a  declar- 
ation of  his  censure  ipso  facto  incurred,  should  not 
be  passed,  for  the  alleg^ed  reason  that  his  contumacy 
is  notorious,  then  under  pain  of  nullity,  a  sentence 
declaratory  of  the  notoriety  of  the  contumacy  must 
first  be  passed  or  at  least  be  inserted  in  the  sentence 
declaring-  the  ipso  facto  suspension.  (C/.  Reiffen- 
stiiel,  I.  5,  /.  7,  n.  264,  266,  et  alios  ibi  et  coynmuniter .^ 
In  a  late  case  no  declaration  of  the  notoriety  of  the 
contumacy  was  inserted  in  the  sentence  declaring  a 
suspension  which  a  bishop  claimed  was  ipso  facto 
incurred,  but  to  hear  which  sentence  he  had  neglected 
to  cite  the  delinquent  priest,  claiming-  afterwards 
that  the  priest  was  notoriously  contumacious.  Be- 
cause of  the  aforesaid  neglect  to  show  or  at  least  in 
the  sentence  to  state  this  alleged  notorious  contu- 
macy, the  sentence  could  not  legally  be  sustained. 
Moreover,  notoriety  can  never  sufficiently  establish 
the  incorrigibleness  of  the  notorious  offender,  since, 
even  when  a  person  has,  e.  g.  publicly  said  that  he 
will  not  obey  the  superior's  warning,  it  is  possible, 
nay  presumable,  that  he  may  have  done  so  from  bra- 
vado or  want  of  consideration.  (6/.  Smith  Elem. 
n,  20^4,  Kober,  der  Kirkenbann,  pg.  155.) 

335.  The  instruction  "Cum  magnopere"  is  silent 
on  the  process  ex  notorio  and  the  process  is  so  dan- 
g^erous  that  it  is  rarely  used  to-day.     In  fact  it  seems 


TRIAL    IS    NECESSARY.  305 

SO  discordant  from  our  times  and  really  so  unneces- 
sary that  few  bishops  care  to  use  it.  If  the  church 
to-day  wished  the  procedure  ex  )wtorio  used  g-ener- 
all3^  it  would  have  mentioned  the  matter  in  the  in- 
struction just  as  it  mentioned  the  one  exception  of 
the  suspension  ex  Uiformaia  coiiscieiitia.  However, 
if  the  crime  w^as  committed  openly  before  the  jud^e 
sitting"  in  court  or  a  bishop  makin^;"  canonical  visita- 
tion, it  may  be  immediately  punished  ex  notorio. 
Such  notorious  crimes,  as  well  as  contempt  of  court, 
mentioned  below  in  n.  366,  require  no  trial,  but 
only  an  immediate  declaration  of  the  notoriet}^  and  a 
sentence.  {Cf.  also  n.  281-282  above.)  However, 
most  modern  canonists  say  that  even  in  such  cases  a 
trial  is  required.  {Sviith.  Elem.  )i.  20^4;  Kober, 
der  Kirkenbayin,  -pg".  ijj.) 

For  all  other  cases  our  authorized  process  under 
the  instruction  likeh^  can  be  made  short  enout^h. 
Hence  the  Third  Council  of  Baltimore,  n.  310,  says: 
"Let  the  bishops  notice  that  except  the  one  case  of 
suspension  ex  inforniata  conscientia,  no  repressive 
punishment  should  be  inflicted  unless  a  judicial 
process  has  preceded,  so  that  even  in  causes  which 
are  called  notorious,  it  is  by  all  means  much  better 
to  institute  a  summar}^  process  reg^arding-  the 
notoriety  before  punishment  is  inflicted."  This  ad- 
vice applies  even  to  crimes  committed  in  the  ver}^ 
presence  of  the  bishop  or  judg-e  out  of  court.  {See 
belovj,  )i.  ^,Y'  ct'nd  folloi^'iiig  for  the  process.) 

336.  The  instruction,  in  article  10,  states  that  a 
criminal  action  may  be  instituted  against  a  cleric 
either  because  without  other  fault  he  breaks  the 
precept  mentioned  above  or  because  of  crimes  or  for 

40 


306  r^EGAL   FORMULARY. 

breaking"  church  laws.  The  process  is  to  be  com- 
piled summarily,  but  the  rules  of -justice  must  be 
strictly  followed.  This  compilation  of  the-  process 
and  especially  the  taking*  of  testimony  -may  be  quite 
burdensome.  Hence,  if  the  bishop  and  the  vicar 
general,  who  are  the  ordinary  judges  of  the  diocese, 
prefer  not  to  act  as  judge  in  a  certain  case,  the  bishop 
may  delegate  some  cleric  to  act,  and  so  also  the  vicar 
general  if  in  his  letters  of  appointment  he  has  re- 
ceived this  power.  The  judge  delegate  before  acting* 
must  leg*itimii:e  or  show  his  appointment  in  public  or 
before  witnesses  and  a  memorandum  to  this  effect 
must  be  entered  by  the  actuary  of  the  trial,  for  which 
a  form  is  given  below.  The  appointment  of  a  judge 
delegate  must  be  made  in  writing.  The  same  is 
true  of  an  auditor  appointed  to  take  testimony. 

337.  Following  is  a  form  for  appointing  either  a 
judge  or  an  auditor  in  a  criminal  case: 

"N.  &c  Bishop  of  N.  to  Rev.  N.  N.  (insert  the 
official  title  or  position  of  the  person  appointed) 
health  in  the  Lord: 

The  requirements  of  our  office  demand  that  not 
only  by  kind  exhortation  and  preventive  remedies 
shall  We  endeavor  to  prevent  evil  and  remove  scandal, 
but  also  that  at  times  by  more  vigorous  measures 
We  shall  recall  delinquents  to  a  sense  of  duty. 
Since  therefore  an  official  process  is  necessary  be- 
cause of  information  now  before  Us  regarding  the 
Rev.  N.  N.  of  the  church  of  N —  in  N — ,  and  since 
our  msLuy  other  duties  will  not  permit  Us  personally 
to  act  as  judg-e  (or  auditor)  in  the  aforementioned 
case,  We,  knowing  your  prudence,  knowledge  of 
law,  probity  of  character,  do  by  these  presents  con- 
stitute you  our  judge  delegate  (or  auditor)  for  this 
case  of  the  Diocese  of  N.   vs.   Rev.  N.   N.    charg-ed 


FORM    irOR    APPOINTIN(;    JUDGE.  307 

with (mention  the  crime  or  charofes,)  the  doc- 
uments in  which  matter  are  g-iven  you  herewith;  and 
We  commit  to  you  the  rio-ht  and  power,  having- 
chosen,  if  you  wish,  a  competent  (auditor  and) 
assessor,  with  our  diocesan  chancellor  or  other 
notary  as  the  actuary  for  the  case,  of  drawing-  up 
and  completing-  a  criminal  process  over  the  afore- 
mentioned person  and  charg-es  even  to  the  final  sen- 
tence inchisivc  (or  exchisive,  if  only  an  auditor  is  ap- 
pointed; in  which  case  add:  and  j^ou  will  faithfully 
transmit  to  Us  all  the  acts  and  your  summary  of  the 
case  that  We  may  pronounce  what  shall  be  just.) 
For  which  purpose  We  deleg-ate  to  you  all  the  neces- 
sary and  opportune  power  and  faculties.  Where- 
fore We  command  all  and  sing'ular  our  subjects  that 
they  recog-nize  and  receive  you  as  our  judg-e  deleg-ate 
(auditor)  and  that  in  this  case  and  matters  pertain- 
ing- thereto  they  obey  you  as  ourselves,  under  the 
penalties  constituted  by  ecclesiastical  law  ag-ainst 
the  rebellious  and  contumacious.  In  testimony  &c. 
Given  &c. 

[Lv.  s.]  N.  Bishop  of  N. 

N.  N.  Bishop's  Chancellor." 

338.  If  the  vicar  g-eneral  deleg-ates,  he  must  men- 
tion that  he  does  so  by  virtue  of  the  power  he  him- 
self received  so  to  do  in  his  appointment.  If  the 
vicar  capitular  or  administrator  deleg-ates,  he  makes 
the  proper  chang-es  in  addressing-  the  person  dele- 
g-ated.  Following-  is  a  form  for  leg'itimizing- or  pub- 
lishing- the  appointment  of  a  judg-e  delegate  or 
auditor: 

"We  the  undersig-ned  heard  read  and  saw^  with 
our  own  eyes  the  letters  by  which  the  Most  Reverend 
Bishop  of  N.  (vicar  g-eneral)  delegated  as  judge 
(auditor)  the  Rev  N.  N.  &c  in  the  criminal  case  of 
the   Diocese   of   N.   vs.   Rev.    N.   N.     In    testimony 


308  IvEGAL    FORMULARY. 

whereof    witness  our  names    this  day  of  

A.   D. . 

Sig-natures,  N.  N.  and  N.  N. 

N.  N.  Actuary." 

The  oath  of  office  must  of  course  be  taken,  a  form 
for  which  is  o-iven  in  n.  60,  pag^e  57.  This  form  may 
be  used  for  any  office  by  only  chano-ing-  the  names. 

339.  There  are  various  ways  in  which  the  bishop 
may  have  obtained  the  extrajudicial  information  on 
which  he  based  his  monitions  and  precept.  As 
shown  in  the  next  chapter,  some  people  may  have 
filed  charges  to  which  they  have  sworn,  or  the  news- 
papers may  have  contained  reports  which  were  veri- 
fied by  proper  investigation.  After  preventive 
measures  have  been  used,  all  this  information  is  turned 
over  to  the  fiscal  procurator  with  an  order  of  the 
bishop  to  proceed.  The  procurator  will  then  draw 
the  charges  and  present  them  to  the  curia.  No  one 
else  can  officially  present  charg-es,  although  any 
agg-rieved  person  may  file  accusations  with  the 
bishop.  Hence  it  is  a  grave  duty  on  the  part  of  the 
procurator  to  see  that  the  testimonyalready  at  hand 
is  sufficient  to  give  at  least  half-full  proof.  The 
bishop  should  remember  that  a  priest  must  have  be- 
come defamed  before  a  judicial  process  can  be  begun; 
otherwise  the  act  of  the  bishop  will  be  defamatory 
and  illegal.  The  prosecutor  is  obliged  to  call  the 
bishop's  attention  to  this,  and  cannot  file  charges 
unless  defamation  has  already  occurred.  For  in- 
stance, one  or  two  people  know  that  a  priest  who 
enjoys  a  gfood  reputation  has  been  guilty  of  a  secret 
crime,  which  in  itself  does  not  injure  his  flock. 
They  report  the  matter  to  the  bishop  and  swear  to 


TAKING    TESTIMONY.  309 

it.  In  such  a  case  the  bishop  may  institute  a  sum- 
mary investig^ation  and  may  g-ive  a  canonical  warn- 
ing* to  the  priest,  but  he  cannot  place  him  on  trial, 
for  there  is  no  ill-fame  and  a  trial  would  be  scanda- 
lous, as  well  as  injurious.  Hence  great  prudence  is 
required  in  both  bishop  and  fiscal  procurator.  The 
duty  of  the  latter  is  to  protect  the  innocent  and  pre- 
vent scandal  as  well  as  to  satisfy  justice.  The  form 
for  his  appointment  is  gMven  in  the  first  part  of  this 
book,  in  n.  81,  pag"e  75. 

340.  It  may  be  well  to  remark  that  if  the  testimony 
on  which  the  bishop  based  his  paternal  warning's 
and  the  precept,  or  in  other  words  if  his  informative 
process  before  using-  preventive  remedies,  was  con- 
ducted and  gathered  legfally,  as  is  aUvays  best,  then 
this  same  testimony  without  re-examination  may  be 
used,  after  the  procurator  has  filed  his  charg-es,  in 
the  process  for  the  information  of  the  curia  before 
the  citation  is  issued  to  the  accused.  Further,  it 
may  be  used  in  the  judicial  process  when  leg'alixed 
and  accepted  by  the  accused,  without  even  then  being- 
repeated,  unless  a  demand  for  repetition  is  made. 
The  testimony  when  taken  in  the  first  instance 
should  therefore  be  taken  leg'ally  before  the  vicar 
g^eneral  or  a  deleg-ate  and  an  ecclesiastical  notary, 
sig-ned  by  the  sw^orn  witnesses,  and  all  marked  and 
drawn  reg-ularly,  the  forms  for  which  will  be  g-iven 
below.  Much  time  can  thus  be  saved,  and  useless 
repetitions  avoided.  However  it  should  be  remem- 
bered that  more  proof  is  required  for  convicting-  a 
cleric  on  trial  than  will  suffice  for  g-iving-  warning-s 
and  the  precept.  For  imposing-  preventive  remedies 
the  bishop   must  have  moral  but  not   leg-al  certainty 


310  LEGAL   FORMULARY. 

of  the  guilt  of  the  accused.  For  the  filing-  of  the 
criminal  libellus  the  procurator  should  have  at  least 
legal  half-full  proof.  For  the  citation  of  the  accused 
the  judge  should  hdL,YQ  ;p7'ivia  facie  legal  full  proof, 
such  that  unless  overthrown  must  convict  the  ac- 
cused. Finally  for  conviction  of  the  accused  the 
judge  must  have  legal  full  proof  remaining'  after  the 
defense  has  tried  to  off-set  it. 

It  should  not  be  overlooked  that  prescription  may 
be  urged  effectually  against  a  criminal  action  for  cer- 
tain crimes.  {See  -page  ^gj  belozu.)  Hence  care  is 
necessary  lest  a  process  otherwise  legal  become  null 
and  ineffectual  through  lapse  of  time  since  the  crime 
was  committed. 


CHAPTER  II. 

FORMS  FOR    THE   SUMMARY  INVESTIGATION   BEFORE 

PREVENTIVE    REMEDIES. 

341.  As  was  said  in  the  preceding  numbers  the 
information  on  which  the  bishop  bases  his  paternal 
preventive  remedies  may  be  obtained  from  various 
sources.  For  safety  a  summary  investig-ation  should 
be  made  by  the  vicar  g-eneral  or  a  deleg^ate  accom- 
panied by  a  notary.  A  prudent  investig-ation  ma}^ 
quietly  be  made,  when  public  fame  or  certain  per- 
sons charg-e  a  cleric  with  crime,  and  sometimes  the 
vicar  general  may  beg-in  an  investig-ation  ex  officio 
when  the  crime  of  a  cleric  becomes  known  throug-h 
another  trial  or  when  a  criminal  exception  is  taken 
and  proved  agfainst  him. 

342.  The  following-  form  for  opening-  the  acts  may 
be  used  when  a  summary  investig-ation  is  made  be- 
cause of  public  fame: 

'^Diocese  of  N—  \ 

vs.  \  Diocese  of  N —  ) 

Rev.  N.  N.  )  Criminal  Department.  \ 

In  the  name  of  the  Lord,  amen.  This  is  a  sum- 
mary investig-ation  w4iich  the  V.  Rev.  N.  N.  vicar 
g-eneral  of  the  Most  Rev.  Bishop  of  N —  intends  to 
institute  ex  officio  ag-ainst  Rev.  N.  N.  a  priest.  For 
since  it  has  come  to  the  ears  of  the  aforesaid  vicar 
g^eneral  that  there  exists  common  fame  even  among- 

g-rave  and  not  malevolent  persons,   that  the  Rev.  N. 

3n 


312        .  LEGAL    FORMULARY. 

N.  has  fallen  into  several  faults  and  crimes,  namely, 
1^  That  he  drinks  to  excess;  2°  that  he  is  therefore 
not  able  and  does  not  attend  to  his  parochial  duties; 
3'^  that  he  loudly  and  openly  curses  people  by  the 
holy  name  of  God;  4°  that  he  struck  and  seriously 
wounded  N.  N.  (or  if  only  one  thing*  is  charged  men- 
tion that);  therefore  the  said  vicar  g*eneral  wishing- 
to  fulfill  his  duty  decided  to  make  a  summary  inves- 
tigation of  these  matters.  Wherefore  he  summoned 
me  the  undersigned  notary  to  his  room  (or  other  place) 
where  he  erected  his  tribunal,  and  deputed  me  as 
actuary    for    the    case.     These    things    were    done 

at this  day  of A.  D.  . 

Signed:  N.  N.  Vicar  General. 

N.  N.  Actuary:" 

The  form  for  examining  witnesses  to  prove  ill- 
fame  is  given  below  in  n.  373. 

343.  When  a  person  of  good  reputation  and  to 
whom  no  exception  can  be  taken  testifies  to  the 
bishop,  making  his  visitation  and  instituting  a  gen- 
eral investigation,  that,  for  instance,  he  has  himself 
seen  a  cleric  frequently  enter  and  leave  forbidden 
places,  such  a  half-full  proof  may  be  a  reason  for  a 
summary  investig'ation.  The  same  may  be  said  when 
a  responsible  person  denounces  a  priest  in  writing, 
and  testifies  to  the  fact.  The  form  for  opening  the 
investigation  in  such  case  is  the  same  as  the  above 
except  to  change  the  source  of  information.  In  all 
such  cases  the  bishop  should  first  investig'ate 
whether  there  is  ill-fame,  in  order  to  know  how  to 
proceed. 

344.  When  by  criminal  exception  to  a  cleric  filed 
and  proved  in  another  case,  or  by  mention  inci- 
dentally made  in  another  case  of  a  crime  committed 
by  a  cleric,  a  crime  becomes  known  to  the  bishop  or 


PREIylMINARY    IN VE^STIGATION.  313 

vicar  jufeneral,  a  summary  investig-ation  should  be 
made.  The  judicial  process  in  which  the  crime  was 
divulged  makes  proof  of  ill-fame.  The  following^ 
may  be  used  as  the  form  for  opening*  when  a  crime 
becomes  known  through  another  trial: 

"In  the  name  of  the  Lord,  amen.  Since  in  the 
process  instituted  ag^ainst  N.  N.  concerning-  (here 
mention  the  suit)  a  certain  N.  N.,  who  was  a  wit- 
ness judicially  examined,  (or  the  defendant)  confessed 
in  his  deposition  that  he  had  committed  (mention  the 
crime  confessed);  therefore  the  V.  Rev.  N.  N.,  vicar 
gfeneral,  wishing*  to  fulfill  his  duty  decided  and  de- 
cides to  proceed  ex  offtcio  to  the  investig^ation  and 
punishment  of  the  said  crime  in  accordance  with  the 
sacred  canons.  Wherefore  &c.  These  thing's  were 
done  in ,  this day  of A.  D.  18  — . 

Sig"ned,  N.  N.  Vicar  General. 

N.  N.  Actuary." 

The  following"  may  be  used  as  a  form  for  opening" 
when  a  crime  becomes  known  throug-h  a  criminal 
exception: 

"In  the  name  of  the  Lord,  amen.  Since  it  is  the 
duty  of  a  judg-e  to  coerce  criminals  by  punishing 
them,  lest  their  bad  example  and  immunity  from 
punishment  may  induce  others  to  commit  similar 
crimes;  the  V.Rev.  N.  N.,  vicar  g-eneral  of  the  Most 
Rev.  Bishop  N — ,  knowing-  that  N.  N.  has  committed 
several  serious  faults,  as  was  proved  in  the  exception 
process  broug-ht  ag-ainst  him  at  the  instance  of  N.  N. 
as  in  the  acts,  decreed,  as  he  also  by  these  presents 
decrees,  to  institute  a  summary  investigation  or 
process  ag-ainst  the  said  N.  N.,  to  examine  witnesses 
and  to  do  other  thing-s  as  required  by  law  even  to  a 
definitive  sentence.     Wherefore,   &c.     These  thing-s 

were  done   in this day   of A.   D.  18 — . 

I,  N.  N.  Vicar  General. 
I,  N.  N.  Actuary." 

41 


314  LEGAL    FORMULARY. 

345.  The  vicar  general  with  the  actuary  will  then 
proceed  with  the  summary  investigation.  This 
should  follow  in  effect  the  lines  laid  down  for  the 
judicial  process.  Hence  witnesses  may  be  examined 
regarding-  the  existence  of  common  ill-fame,  and  if 
the  fault  or  crime  left  permanent  marks,  such  for 
instance  as  the  striking  of  N.  N.  by  the  priest  men- 
tioned in  n.  342,  then  a  visitation  of  the  corpus 
delicti  should  be  made  and  properly  recorded.  Wit- 
nesses may  then  be  cited  and  examined  regarding 
the  crimes  charged,  and  their  testimony  noted. 
Should  the  vicar-g-eneral  be  unable  to  go  to  a  certain 
place  to  examine  witnesses  a  commission  may  be 
delegated  for  the  purpose  by  the  bishop  or  by  the 
vicar  general  if  his  appointment  gives  him  that 
authority.  If  a  special  notary  is  also  appointed  for 
the  commissioner  then  only  the  bishop  can  appoint 
him.  Forms  for  these  acts  are  the  same  as  those 
used  in  the  judicial  process  which  will  be  given  be- 
low in  chapters  IV  and  following. 


CHAPTER  III. 

FORMS  FOR  CRIMINAL  LIBELLUS   AND  FOR  RE- 
CORDING THE  ACTS. 

346.  When  the  fiscal  procurator  is  certain  of  the 
necessity  of  filing-  charg-es  he  may  use  the  following- 
form  for  a  criminal  libellus: 

"Diocese  of  N —  i 

vs.  >  Diocese  of  N —  [ 

Rev.  N.  N.  )  Criminal  Department.  ) 

Bill  of  Charg-es. 

Comes  now  the  Rev.  P.  Q.,  fiscal  procurator  of 
the  diocese  of  N —  and  before  the  V.  Rev.  N.  N. 
vicar  g-eneral  and  ordinary  judg-e,  files  ex  o/fic/o  the 
following-  charg-es  and  accuses  the  Rev.  N.  N.  rector 
of  the  church  of  St.  A —  in  X —  of  being-  scandalous 
in  conduct,  of  neg-lecting-  to  say  mass  on  Sundays  so 
that  the  people  of  his  parish  may  assist  thereat,  of 
celebrating-  mass  without  keeping-  the  fast  required 
as  a  preparation,  of  breaking-  the  precept  imposed 
upon  him  reg-arding-  these  matters  by  the  Most 
Rev.  B.  C,  bishop  of  this  diocese. 

The  fiscal  procurator  charg-es:  1*^  Scandalous 
conduct  and  specifies:  a)  The  Rev.  N.  N.  frequents 
saloons  in  X —  and  drinks  therein,  much  to  the 
scandal  of  his  parishioners,  b)  The  Rev.  N.  N. 
was  seen  drunk  on  the  streets  of  X —  and  particularly 
on  or  about  the  10th  da}^  of  May  A.  D.  — ,  and  also 
onor  about  the  15th  day  of  June,  A.  D. — .  c)  Because 
of  excessive  drink  he  was  unfit  and  unable  to  attend 
an  urg-ent  sick  call   in  X —  on  the  11th  day  of  June 

315 


316  LEGAL    FORMULARY. 

A.   D.  1898,  and  in  consequence  the  sick  person  died 
without  the  sacraments. 

2^  Not  celebrating-  mass  on  Sundays  so  that  the 
parishioners  may  assist  thereat,  and  specifies: 
a)  On  Sunday,  the  5th  day  of  June,  A.  D.  1898,  and 
ag-ain  on  Sunday,  the  12th  day  of  June,  A.  D.  1898, 
the  Rev.  N.  N.  neither  said  mass  nor  had  mass  cel- 
ebrated in  the  church  of  X — ,  on  which  days  mass 
should  have  been  said. 

3°  Breaking-  the  ecclesiastical  fast  required  before 
celebrating"  mass  and  he  specifies:  a)  On  the  morn- 
ing- of  the  14th  day  of  June,  A.  D.  1898,  the  Rev.  N.  N. 
publicly  said  mass  in  X —  after  eating-  and  drinking- 
at  about  2  o'clock  that  morning-  in  the  presence  of 
five  or  six  persons. 

4*^  The  fiscal  procurator  charg-es  the  Rev.  N.   N. 

with    breaking-   in    X —  during-   the   month   of   

A.  D. ,  the  formal  precept  imposed  upon  him  on 

the  31st  day  of  May,   A.  D.  1898,  by  the  Most  Rev- 
erend Bishop. 

To  sustain  which  charg-es  legally  the  fiscal  pro- 
curator is  ready;  and  he  therefore  prays  that  this 
bill  be  accepted,  that  proceeding-s  be  had  as  required 
by  law  and  punishment  be  inflicted  according-ly. 
Hoc  et  omni  meliori  modo. 

Dated  N—  June  21,  1898. 

P.  Q.  Fiscal  Procurator." 

The  fiscal  procurator  should  not  attach  the  names 
of  witnesses  to  his  charg-es.  He  may  hand  a  sched- 
ule of  proofs  to  the  judge,  but  it  should  not  be  put 
in  the  acts  at  this  stag-e. 

347.  After  the  fiscal  procurator  has  officially  filed 
his  charg-es,  the  judg-e,  either  ordinary  or  deleg-ated, 
will  summon  the  diocesan  chancellor  or  other  notary, 
who  as  actuary  for  the  case  may  beg"in  the  acts  with 
this  form  for  recording-  the  acts  or  beg-inning*  com- 
pilatio  processus: 


FORM  FOR  RECORDING  ACTS.        317 

"Diocese  of  N —  i 

vs.  >-  Diocese  of  N —  ) 

Rev.  N.  N.  )  Criminal  Department.    \ 

In  the  name  of  the  Lord,  amen.  This  is  a  crimi- 
nal -process  which  at  the  instance  of  the  Rev.  P.  Q. 
fiscal  procurator  of  the  diocese  of  N —  the  V.  Rev. 
N.  N.,  vicar  general  of  the  Most  Rev.  Bishop  of  N — 
intends  to  formulate.  For  since  the  said  fiscal  pro- 
curator appeared  and  officially  offered  a  bill  of 
charo-es  which  begins  'Diocese  of  N —  vs.  Rev.  N. 
N.  Bill  of  Charges'  and  ends  with  his  signature  and 
the  date,  'June  21,  1898,'  and  which  bill  is  found  be- 
low under  the  title  'Documents  no — ,'  the  aforesaid 
V.  Rev.  vicar  general  wishing  to  proceed  according 
to  law%  summoned  me,  an  ecclesiastical  notary,  and 
deputed  me  as  actuary  for  the  case.  These  things 
were  done  in this day  of A.  D. . 

Signed,  N.  Vicar  General. 

N.  Actuary." 

348.  If  the  notary  is  specially  created  for  the  case 
he  should  insert  the  document  of  his  creation  among 
the  records  and  while  using  the  above  form  for  be- 
ginning the  process  will  insert  these  words  after 
"the  aforesaid  vicar  general:" 

"Wishing  to  proceed  according  to  law  obtained 
from  the  Most  Rev.  Bishop  N —  that  a  notary  be 
created  who  could  be  made  actuary  for  this  case. 
Wherefore  the  aforesaid  bishop  before  witnesses 
created  me  a  notary  public,  having  administered  to 
me  the  oath  of  fidelit}^  in  office  which  I  at  once  took, 
as  appears  in  the  documents  of  this  case  no.  — ;  and 
the  V.  Rev.  vicar  general  deputed  me  actuary 
for  this  case.     These  things  were  done  &c  as  above." 

The  form  for  creating  a  notary  is  given  in  the  first 
part  of  this  work,  page  64. 

349.  When   a    delegate   judge    or  an  auditor  has 


318  IvEGAIv    FORMUI^ARY. 

been  appointed,  for  which  the  forms  are  g^iven  above 
in  n.  337-338,  then  the  actuary  will  thus  beg"in: 

"Diocese  of  N — ) 

vs.  >  Diocese  of  N —  ) 

Rev.  N.  N.  )  Criminal  Department.    I 

In  the  name  of  the  Lord,  amen.  This  is  a  criminal 
process  which  the  Rev.  N.  N.  (mention  the  deleg'ate's 
title,  such  as  consultor)  as  judg-e  delegate  (or  auditor) 
at  the  instance  of.  Rev.  P.  Q.  the  fiscal  procurator 
of  the  diocese,  intends  to  formulate.  For  since  the 
Rev.  P.  Q.,  the  said  fiscal  procurator,  appeared  be- 
fore the  vicar  gfeneral  of  the  Most  Rev.  Bishop  of 
N —  and  officially  offered  a  bill  of  chargfes  which 
beg"ins:  'Diocese  of  N —  vs.  Rev.  N.  N.  Bill  of 
charg^es'  and  ends  with  his  signature  and  the  date 
'June  21,  1898,'  and  which  bill  is  found  below  under 
the  title  'Documents  no.  — ,'  the  aforesaid  V.  Rev. 
vicar  general  (or  the  Most  Rev.  Bishop  at  the  request 
of)  busy  with  other  work,  therefore  delegated  his 
jurisdiction  over  this  case  (for  the  compilation  of  the 
process)  to  Rev.  N.  O.  (diocesan  consultor.)  The 
said  delegated  consultor  (or  other  official)  went  to 
X —  and  there  before  all  else  legalized  his  appoint- 
ment by  having  the  letters  patent  of  his  delegated 
jurisdiction  read  before  M —  and  Y —  as  witnesses, 
as  appears  below  under  the  head  of  Documents 
no. —  The  judge  delegate  (or  auditor)  wishing  to 
proceed  &c  (as  in  previous  form.)     Dated  &c. 

N.  O.  Judge  Delegate  (or  auditor.) 

N.  Actuary." 


CHAPTER  IV. 

FORMS    FOR   VISITING   CORPUS    DELICTI,    FOR   INTRO- 
DUCING   DOCUMENTS. 

350.  When  the  crime,  which  is  bein^  investig^ated, 
either  summarily  or  judicially,  is  of  a  permanent 
character,  i.  e.,  when  traces  of  it  are  left,  a  visita- 
tion of  the  corpus  delicti  should  be  made,  since  this 
constitutes  basic  testimony.  This  visitation  should 
be  made  even  before  investig^ation  is  made  of  the 
fama  piiblica,  when  the  vicar  g^eneral  bases  his  sum- 
mary investigfation  on  that  foundation.  If  after  the 
precept  is  g"iven  there  is  a  renewal  of  the  corfiis 
delicti^  another  visitation  should  be  made.  For  in- 
stance a  formal  precept  has  been  g'iven  a  cleric  to 
cease  becoming*  intoxicated.  Some  time  after  re- 
ceiving* this  precept  he  is  reported  to  have  delirium 
tremens.  This  condition  might  constitute  a  corpus 
delicti',  though  to  make  a  visitation  in  such  or  similar 
cases,  experts  might  safer  be  emplo3'ed. 

351.  When  the  vicar  general,  judge  delegate  or 
auditor  makes  the  visit  to  the  corpus  delicti,  the 
acts  may  be  thus  written. 

"After  this  the  Rev.  N.  O.,  the  judge  (auditor) 
wishing  to  proceed  according  to  law,  accompanied 
by  me  and  two  witnesses,  specially  summoned  for 
the  purpose,  went  to  X —  in  order  to  visit  the  corpus 
delicti  mentioned  in  number  —  of  the  charges  under 

319 


320  IvEGAL   FORMUI^ARY. 

this  investigation  which  was  instituted  ex  officio  be- 
cause ot  common  fame  (or  insert  proper  reference  to 
acts  in  the  case.)  And  it  was  seen  and  found  that 
N.  N.  was  badly  injured;  for  there  w^s  a  wound  on 
the  rig"ht  side  of  his  face  &c  (describe  it)  on  account 
of  which  the  said  N.  N.  was  confined  to  his  room. 
(Or)  And  it  was  seen  and  found  that  the  said  Rev. 
N.  N.  was  in  a  state  of  delirium,  in  which  he  acted 
irrationally,  claiming  to  see  snakes  and  such  like 
and  constantly  calling"  for  liquor  (describe  condition) 
which  state  the  physicians  present  as  witnesses  said 
was  delirium  caused  by  excessive  drink.  These 
thing's  were  done  in  —  the  —  day  of  —  A.  D.  — . 

Sig-ned,  N.  O.  Judg-e. 

I,  M.  M.  was  present  as  witness.  I,  G.  H.  was 
present  as  witness.  N.  N.  Actuary." 

352.  If  the  judg"e  himself  cannot  make  such  a  visit 
he  may  depute  the  actuary  with  the  two  witnesses, 
and  the  acts  may  then  be  written: 

"After  this,  the  Reverend  Judg^e  wishing*  to  pro- 
ceed according-  to  law,  deputed  me  with  two  wit- 
nesses, namely  M.  M.  and  G.  H.  to  visit  the  corpus 

delicti  mentioned  above  in .     Hence,  accompanied 

by  the  said  witness  I  went  to and  there  it  was 

seen  and  found  that"  &c  as  above.  Dated  and 
sigfned  by  the  two  witnesses  and  the  actuar}^." 

If  for  some  reason  it  is  impossible  to  visit  the 
corpus  delicti,  for  instance,  the  injured  person  will 
not  submit  to  it,  as  in  the  case  of  an  outragfed  woman, 
then  an  entry  should  be  made  in  the  acts  reg^arding- 
the  matter  and  proceeding's  continued  as  if  no  traces 
of  the  crime  were  left: 

"Althoug"h  the  said  crime  mentioned  above  in 
number  —  is  of  a  permanent  character  and  therefore 
would  require  a  visitation  of  the  cor-ptis  delicti,  still 
because  the  aforesaid  injured  person,  D.  E.  will  not 


INTRODUCING    DOCUMENTS.  321 

consent  to  an  examination,  and  there  is  no  way  to 
compel  it,  the  V.  Rev.  N.  N.  vicar  g*eneral  (or  jud^j^e 
or  auditor)  pronounced  that  the  visitation  of  the 
corfms  delicti,  since  it  is  impossible,  is  not  required 
in  the  case,  and  it  beino-  omitted,  that  the  proceed- 
ing's be  continued.     Done  &c.     SitJj'ned  &c." 

353.  It  will  be  necessary  to  introduce  into  the 
criminal  process  the  canonical  admonitions  and  the 
precept  as  well  as  what  testimony  is  deemed  suitable 
from  that  g^athered  in  le^^al  form  by  the  bishop  be- 
fore inflicting*  preventive  punishments.  A  copy  also 
of  thedecree  inflicting- these  punishments,  paternally 
administered,  may  be  introduced  from  the  summary 
investig"ation  into  the  judicial  process.  All  this 
should  be  done  before  the  accused  is  cited,  and  even 
before  witnesses  are  examined.  The  following*  form 
may  be  used  for  introducing-  such  documents  or 
records: 

"After  this,  the  V.  Rev.  Judg-e  (or  auditor)  wish- 
ing" to  proceed  with  safet}^  and  according"  to  law,  at 
the  instance  of  the  fiscal  procurator  w^ho  produced 
them,  had  read  the  canonical  monitions  which  are 
filed  with  the  documents  of  this  case  and  marked 
no. — ,  and  the.  formal  precept  also  filed  and  marked 
no. — ;  and  it  appearing"  that  these  documents  are 
authentic,  and  that  the  said  monitions  and  precept 
were  actually  g"iven  to  the  said  Rev.  N.  N.,  the  V. 
Rev.  Judg-e  ordered  that  they  be  admitted,  si  ct  i)i 
quantum,  and  that  they  be  made  part  of  the  process. 
Done  &c.     Sig-ned  &c,  as  above." 

A  similar  form  ma}^  be  used  for  introducing"  other 
official  records,  and  also  testimony'  taken  b}'  commis- 
sioners either  for  the  informative  or  judicial  process. 
The    form   for   thus    taking"   testimony    is    sfiven    in 

chapter  six  below, 
42 


CHAPTER  V. 

FORMS   FOR   CITATION   OF    WiTNliSSEiS. 

354.  All  witnesses  in  a  criminal  case,  especially 
for  the  prosecution,  should  be  cited  either  by  letters 
or  formal  citation.  When  they  are  cited  to  give  tes- 
timony for  a  summary  investig"ation  the  name  of  the 
accused  should  not  be  mentioned  in  the  citation. 
When  cited  after  a  citation  has  been  issued  to  the 
accused,  then  the  process  in  which  the}^  are  to  testify 
may  be  mentioned.  Article  17  of  the  "Cum  mag^no- 
pere"  enacts  that  the  witnesses  must  be  examined 
separately.  Article  18  enacts  that  all  witnesses  be- 
fore testifying-  must  take  an  oath  to  tell  the  truth, 
and  also  to  keep  secret  the  matter  on  which  they  tes- 
tified. This  secrecy  must  be  observed  until  the  leg^al 
publication  of  the  testimony.  It  is  also  enacted  that 
all  others  connected  with  formulating-  the  process 
must  take  a  similar  oath. 

355.  Article  19  authorizes  the  employment  of  a 
commissioner  to  take  the  testimony  of  witnesses  in 
distant  places  within  the  diocese,  and  their  diocesan 
authority  if  they  be  in  another  diocese,  and  says  a 
summary  of  the  facts  of  the  case  must  be  transmitted 
to  the  commissioner  along"  with  the  questions  pro- 
posed for  the  witness  to  answer.  Article  20  enacts 
that  if  witnesses  who  should  be  examined  cannot  be 
examined,  either  because  it  is  not  lawful  or  proper  to 
cite  them,  or  because  when  cited  they  refuse  to  come, 

322 


FORM    FOR    CITING    WITNESSES.  323 

then  a  note  should  be  made  of  this  in  the  acts,  and 
their  testimony  be  supplied  b}^  other  witnesses  who 
know  the  matter  by  hearsay  or  otherwise.  But  it 
should  be  remarked  that  the  instruction  does  not 
mention  any  punishment  for  witnesses  who  refuse 
to  testify.  It  is  doubtful  whether  a  witness  can  be 
punished  for  refusing-  to  testif}^  against  an  accused 
cleric,  in  a  criminal  or  disciplinary  case.  Custom, 
however,  seems  to  have  established  the  practice  of 
punishing-  those  who  refuse  to  testify  in  favor  of  an 
accused  person  or  who  contemn  the  court.  But  it 
should  be  remembered  that  if  an  auditor  has  charg-e 
of  the  process,  he  himself  cannot  inflict  censures  on 
a  recalcitrant  witness,  but  must  turn  the  matter 
over  to  the  vicar  gfeneral,  unless  in  his  deleg^ation 
this  power  of  compelling*  was  specially  deleg^ated. 

356.  Following*  is  a  form  for  calling*  a  witness  b}^ 
private  letters,  especially  for  a  summary  in- 
vestig*ation: 

"To  N.N. 

Dear  Sir:  Since  3^our  presence  is  necessary  in  a 
certain  cause  which  is  now  under  investig*ation  b}^ 
us,  in  which  3^ou  can  gfive  information  on  certain 
points,  we  trust  you  wmII  not  be  incommoded  by 
being-  cited  by  us  to  appear  before  the  diocesan 
curia  in  the  episcopal  residence  (or  other  place)  on 
the  18th  day  of  June  next  at  9  o'clock  a.  m.  Mean- 
while may  God  have  you  in  his  keeping*.  Given  in 
the  episcopal  chancery  this  13th  da}'  of  June  A.  D.  1898. 

N.  N.  Vicar  General." 

357.  Following*  is  a  form  for  judiciall}'  citing*  a 
witness: 

"We,  N.  N.  the  vicar  g*eneral  of  the  Most  Rev- 
erend Bishop  of  N — ,  require,    warn  and  cite  N.  N. 


324  LEGAL    FORMULARY. 

(under  pain  of  suspension  or  without  any  threatened 
punishment,  as  the  judge  sees  fit)  to  appear  on  the 
—  day  of  this  month  personally  in  the  episcopal 
curia  before  us,  the  vicar  gfeneral,  there  to  be  sworn 
and  to  depose  for  the  information  of  fhe  curia  in  a 
certain  cause  now  being-  tried  before  the  said  curia; 
(or  if  the  accused  is  already  cited,  then  insert  "in 
the  cause  now  being*  tried  in  the  said  curia  ag^ainst 
N.  N.  as  in  the  acts.")  And  we  command  that  our 
public  messeng-er  N.  N.  (or  other  person  stated)  shall 
serve  this  citation  on  the  aforesaid  witness  either 
personally,  or  at  his  residence  or  by  reg^istered  mail. 

Given  at this day  &c. 

N.  Vicar  General. 
N.  Actuary." 

358.   The  following-  is  a  form  for  citing-  a  witness 

so  that  he   may   be  punished   as  contumacious  if  he 

refuses  to  appear: 

"We,  N.  N.,  the  vicar  g-eneral  of  the  Most  Rev. 
Bishop  of  N —  require,  warn  and  cite  N.  N.  (under 
pain  of  fine  or  suspension,  or  without  threat)  to  ap- 
pear on  the day  of  this  month  personally  in  the 

episcopal  curia  before  us,  the  vicar  g-eneral,  there  to 
be  sworn  and  to  depose  for  the  information  of  the 
curia  in  a  certain  cause  now  being-  tried  before  the 
said  curia;  (or  mention  the  name  of  the  accused  if  he 
has  been  cited.)  But  wishing-  that  this  notice  of 
citation  shall  have  the  force  of  a  canonical  warning-, 
we  therefore  assig-n  six  days  from  the  day  on  which 
this  notice  shall  be  served  on  him,  of  which  two  shall 
be  for  the  first  term,  two  for  the  second  and  two  for 
the  third  and  peremptory  term;  within  which,  if  he 
does  not  appear  before  us,  unless  detained  by  a 
leg-itimate  cause,  let  him  know  that  we  shall  pro- 
ceed ag-ainst  him  as  contumacious,  according-  to  the 
forms  of  law,  without  any  other  citation.     Given  &c. 

N.  Vicar  General. 
N.  Actuary." 


SERVICE   OP   CITATION.  325 

If  the  witness  does  not  appear,  then  a  declaration 
of  contumacy  should  be  made  by  the  jud^'-e  and 
canonical  monition  g-iven,  as  below  in  n,  360,  before 
censures  are  inflicted.  (C/.  Cone.  Trent,  sess.  25, 
e.  J,  de  ref.) 

359.  Article  14  of  the  "Cum  mag^nopere"  enacts 
that  all  notices  and  citations  shall  absolutel}^  be 
g-iven  in  writing",  i.  e.,  under  pain  of  nullity.  When 
the  person,  public  or  private,  charg-ed  with  the  serv- 
ing" of  the  citation  has  served  it,  he  must  under  oath 
make  his  return  of  service  to  the  actuary.  If  he 
cannot  serve  the  citation  he  must  make  a  return  to 
that  effect.  Hence  each  citation  should  be  in  dupli- 
cate, one  for  the  witness,  the  other  to  be  retained  by 
the  messeng-er  and  returned  to  the  actuary  who  will 
insert  it  in  the  acts  with  the  following"  entry: 

"Since  M.  P.  the  messeng"er  (or  other  person 
stated)  of  this  curia  received  a  mandate  from  the  V. 
Rev.  Vicar  g"eneral  to  citeX.  Y.  personally,  or  in  his 
house,  or  by  reg"istered  letter,  he  having"  now  re- 
turned to  me  the  actuary,  and  being"  first  sworn, 
made  report  that  on  —  (mention  time  and  place)  he 
served  the  citation  to  him  (mention  in  what  way)  and 
he  presented  a  copy  of  it  for  the  acts,  which  is  filed 
and  marked  no.  — .     These   thing's  were  done  in  the 

episcopal  chancery  this day  of  A.  D.  . 

I,  M.  P.,  the  messeng"erof  the  episcopal  curia,  affirm 
as  above.  N.  N.  Actuary'." 

The  actuary  will  enter  in  the  acts  the  failure  to 
serve  the  citation,  chang"ing"  the  above  form  where 
needed.  If  the  service  was  by  reg'istered  mail,  the 
messeng"er  will  file  the  postal  precept  with  his  return 
of  service. 

360.  For  the  purpose  of  proceeding"  ag"ainst  a  con- 


326  LEGAL    FORMULARY. 

tumacious  witness,  following'  is  a  declaration  of 
contumacy  and  a  form  for  a  warning-  citation  to  a 
witness  equivalent  to  three: 

"We,  N.  N.  the  vicar  general  of  the  Most  Rev. 
Bishop  of  N — ,  since  it  appears  that  X.  Y.  a  witness 
cited  personally  (or  state  how)  to  appear  before  us 
personally  (or  before  Rev.  L.  K.  auditor  for  this 
curia)  did  neither  appear  on  the  appointed  day  nor 
excuse  his  absence  through  a  procurator  (or  refused 
to  come  &c.;)  we,  therefore,  intending  to  proceed 
against  such  contumacy  in  accordance  with  law,  by 
way  of  warning  cite  the  aforesaid  X.  Y.  to  appear 
before  us  and  show  cause  why  he  should  not  be  pun- 
ished for  contempt,  within  thirty  days  from  the  date 
of  these  presents;  of  which  days  we  assign  ten  for 
the  first,  ten  for  the  second  and  ten  for  the  third  and 
peremptory  term.  Therefore  if  he  does  not  appear 
before  the  said  peremptory  term  has  elapsed,  unless 
leg-itimately  impeded,  let  him  know  that  we  shall 
proceed  against  him  as  contumacious  without  any 
further  warning.     Given  at  &c. 

N.  Actuary.  N.  Vicar  General." 

361.  The  actuary  ma}^  enter  the  above  in  the  acts 
in  these  words: 

"Since  X.  Y.  who,  on  the  order  of  the  V.  Rev.  N. 
N.,  vicar  general  (or  auditor)  was  cited  to  appear 
and  testify  in  this  case,  did  not  appear  on  the  re- 
quired day  (or  told  the  messenger  he  would  not  come 
&c.:)  therefore  the  said  V.  Rev.  Vicar  general 
ordered  proceedings  accorded  to  law  against  such 
contumacy  and  comijianded  that  a  monitorial  cita- 
tion, peremptory  and  equivalent  to  three,  be  served 
on  the  said  X.  Y.  (or  at  his  house,  or  by  reg*istered 
mail)  by  the  court  messeng'er  (or  other  person  speci- 
fied) of  which  the  following  is  the  tenor:  (Insert 
monition  as  above.)  Therefore  the  aforesaid  mes- 
senger  (or  other  specified  person)  after  he  had  ful- 


FORMS   FOR    CONTUMACY.  327 

filled  his  orders,  returned  to  me  the  actuary  and  on 
oath  reported  (either  that  the  aforesaid  X.  Y.  thus 
cited  said  &c  or  reported)  that  on  the  —  da\^  of  — 
A.  D.  —  he  delivered  the  citation,  of  which  the  above  is 
a  copy,  to  X.  Y.  personally  (or  at  his  house  or  by 
reg'istered  mail.) 

These  thing's  were  done  in this day  of 

A.  D.  .     I,  M.  P.  messeng-er  of  the  episcopal  curia 

affirm  as  above.  I,  N.  N.  Actuary." 

362.  Form  for  declaring-  sentence  ag^ainst  a  con- 
tumacious witness: 

"Since  X.  Y.  was  cited  to  appear  before  us  by  a 
peremptor}^  warning*  having-  the  force  of  a  triple  one, 
(see  n.  360  above)  and  dated  the  —  da}^  of  —  A.  D. — 
and  since  he  by  contemning-  our  orders  has  become 
and  is  contumacious  after  the  aforesaid  warning-; 
therefore  to  compel  him  to  show  us  proper  obedience, 
by  these  writing's  we  lodg-e  ag-ainst  him  the  sentence 
of  suspension  ab  officio  (or  a  fine  of  —  dollars;)  by 
which  he  shall  remain  inflicted  until  he  appears  be- 
fore us  and  by  obeying-  us,  merits  the  benefit  of 
absolution.  And  that  all  nia}^  know  this  sentence, 
we  order  it  published  by  affixing"  it  in  opportune 
places.     Given  &c. 

N.  N.   Vicar  General. 
N.  N.  Actuary." 

363.  The  actuar}'  will  enter  the  above  sentence  in 
the  acts  using-  about  the  same  form  with  proper 
chang-es,  as  gfiven  above  in  n.  361,  for  entering-  the 
monitory  citation. 

The  actuary  will  then  make  this  further  entry 
about  the  execution  of  the  sentence: 

"Therefore  for  the  execution  of  the  foreg-oing-  sen- 
tence, which  was  read  in  a  loud  and  intellig'ible  voice, 
as  is  the  custom,  by  the  V.  Rev.  N.  N.,  the  vicar 
g*eneral,  seated  at  his  tribunal,  the  court  messeng-er 


328  LEGAL    FORMULARY. 

M.  P.  on  the  order  of  the  V.  Rev.  Vicar  general 
received  two  copies  of  the  said  sentence  to  be  affixed 
to  the  doors  of  the  episcopal  chancery  (or  other  cus- 
tomary places)  which  same  he  reported  on  oath  that 
he  had  thereunto  affixed.  These  thing-s  were  done 
in  —  this  —  day  of  —  A.  D.  — .  I,  M.  P.  messeng-er  of 
the  episcopal  curia  affirm  as  above. 

I,  N.  N.  Actuary." 

364.  Form  for  absolving-  a  witness  returned  from 
contumacy: 

"Before  the  V.  Rev.  N.  N.,  vicar  general  of  the 
Most  Rev.  Bishop  N.,  came  finally  X.  Y.  who,  as  is 
mentioned  above,  was  suspended  (or  fined)  for  con- 
tumacy; and  he  said  he  repented  of  his  contumacy  in 
not  obeying  the  orders  and  citations  given  him,  and 
that  he  is  prepared  to  appear  as  often  as  called  in 
the  future,  and  obey  the  V.  Rev.  Vicar  general,  and 
meanwhile  he  has  begg^ed  to  be  absolved  from  the 
censure  (fine)  lodged  against  him.  'Therefore  the 
aforesaid  V.  Rev.  Vicar  general,  after  g-iving  an  op- 
portune serious  warning,  before  the  witnesses  under- 
sig-ned  specially  called  for  the  purpose,  absolved  him 
in  the  usual  manner.  These  things  were  done 
(place  and  date.)  I,  X.  Y.  have  asked  and  promised 
as  above.  I,  J.  K.  was  a  witness.  I,  P.  Q.  was  a 
witness. 

I,  N.  N.  Vicar  General. 
I,  N.  N.  Actuary." 

365.  The  actuary  may  then  enter  in  the  acts  the 
following  before  the  examination  of  the  absolved 
witness: 

"But  when  the  said  X.  Y.  had  been  absolved  from 
the  censure,  as  stated  above,  the  V.  Rev.  Vicar  gen- 
eral called  him  to  the  curia,  where  he  oflPered  him, 
the  said  X.  Y.,  the  oath  of  verity  and  secrecy  which 
he  took  in  the  accustomed  way.     Afterwards  being- 


FORMS    FOR    CONiniMACY.  329 

interrogated    he  replied    as    follows:       (GivinjSf    his 
examination.) 

When    a    witness  comes    into  court,    after    being- 
warned  but  before  being' censured,  the  acts  may  read: 

"When  C.  D.  a  witness,  who  had  refused  to  obey 
the  citations,  as  above,  but  had  not  yet  been  cen- 
sured, returned  to  a  better  disposition  and  sent  word 
to  the  V.  Rev.  Vicar  g"eneral  asking"  pardon  and 
promising-  obedience,  he  the  V.  Rev.  Vicar  gfeneral 
called  him  to  the  curia,  where  the  said  witness  hav- 
ing" taken  the  oath  in  the  usual  way,  was  interro- 
g-ated  and  replied  as  follows." 

366.   During"  examination  it  may   be  necessary  to 
use  this  form  for  punishing"  an  irreverent  witness: 

"Later  A.  B.  was  called  as  a  witness,  who  being- 
ordered  to  take  the  oath  and  reply  to  questions, 
wished  neither  to  make  oath  nor  to  reply;  but  with 
contempt  did  or  said  (mention  what.)  Whereupon 
the  V.  Rev.  Vicar  g"eneral  kindly  admonished  him, 
and  when  because  of  this  kindness  the  said  A.  B. 
became  worse,  he  severely  rebuked  him.  The  wit- 
ness nevertheless  persisting-  in  his  pertinacity  and 
contempt,  the  V.  Rev.  Vicar  g"eneral  thoug"ht  best  to 
use  the  remedies  of  law,  and  therefore  decreed  as 
follows: 

"Since  A.  B.  called  as  a  witness  and  ordered  to 
take  the  oath  and  reply  to  questions,  openly  refused 
to  obey,  and  althoug-h  once  admonished  and  ag"ain 
rebuked,  still  persisted  in  his  pertinacity;  therefore 
by  the  present  order  we,  the  vicar  g-eneral,  decree 
that  the  said  A.  B.  shall  remain  subject  to  the  cen- 
sure of  suspension  (excommunication)  until  he  re- 
l)ents  and  obeys  our  commands.  Given  (place  and 
date.)  N.  N.  Vicar  General. 

N.  N.  Actuary." 
4:3 


330  LEGAL   FORMULARY. 

367.  The  form  for  absolving-  from  the  censure  of 
suspension  inflicted  for  contumacy,  as  above,  maybe: 

"Absolvo  te  a  vinculo  suspensionis  in  quam  incur- 
risti  ob  causam  contumacia  et  restituo  te  pristinae 
executioni  tuorum  ordinum  vel  officiorum." 

For  absolving-  from  the  excommunication: 

"Absolvo  te  a  vinculo  excommunicationis  in  quam 
incurristi  proper  contumaciam  et  restituo  te  sacra- 
mentis  ecclesia^  et  fidelium  communioni.  In  nomine 
Patris  &c." 

These  forms  of  absolution  are  not  strictly  neces- 
sary; since  the  w^ords  "absolvo  te  a  suspensione,"  or 
other  censure,  are  held  sufficient.  When  the  censure 
has  been  publicly  declared,  it  is  advisable  to  use  the 
form  of  absolution  g-iven  in  the  Roman  Ritual  for 
absolution  \nforo  externo. 

In  the  above  forms  three  terms  of  ten  days  each  are 
g-iven;  but  after  the  "Cum  mag-nopere"  it  seems  only 
two  terms  or  tv^enty  days  are  necessary.  Moreover 
the  two  monitions  to  show  cause  may  be  combined 
into  one  peremptory  citation,  if  mention  is  made  of 
such  fact,  as  is  done  above,  in  the  citation. 


CHAPTER  VI. 

COMMISSORIAL     AND     REMISSORIAL      LETTERS     FOR 

EXAMINING    WITNESSES. 

368.  When  a  witness  is  to  be  examined  at  a  dis- 
tance from  the  court  but  in  the  diocese  the  bishop,  or 
the  vicar  g*eneral,  as  stated  in  n.  335,  will  appoint 
a  commissioner  for  that  purpose.  This  is  a  form  for 
appointing-  a  commissioner  to  take  testimony: 

"N.  Bishop  of  N.,  to  our  beloved  son  in  Christ, 
Rev.  C.  R.  rector  of  the  church  of  St.  C.  in  M.  health 
and  benediction.  Since  it  is  necessar}^  for  Us  to  ex- 
amine A.  K.  for  a  certain  cause  which  is  being"  tried 
before  Us,  and  since  for  g-ood  reasons  We  judg-e  that 
it  is  not  advisable  that  the  said  A.  K.  be  summoned 
to  our  tribunal,  We  therefore  by  these  presents  com- 
mit to  you  and  enjoin  that,  having-  taken  for  actuary 
N.  N.  a  notary  public,  (or,  w^hom  for  this  case  by 
these  presents  We  create  a  notary  and  whose  oath 
of  office  3"ou  will  receive  in  the  usual  manner)  3'ou  g-o 
to  the  said  A.  K.  (or  call  him  before  you)  and  in  the 
presence  of  the  said  notary  you  examine  him  on  the 
points  mentioned  below.  But  We  order  the  said  A. 
K.  under  a  formal  precept  to  recog-nize  you  as  our 
commissioner  deleg-ated  to  take  the  aforesaid  exami- 
nation and  We  command  that  he  assist  and  obey 
you  in  all  thing-s  for  this  purpose.  The  points  on 
which  the  said  A.  K.  is  to  be  questioned  are: 
1*^  &c.  (The  several  questions  are  to  be  sent  and 
put  to  A.  K.  just  as  if  he  were  examined  in  the  curia.) 
Enclosed  is  also  a  summary  statement  of  the  case  on 

331 


332  TvEGAT.    FORMUTvARY. 

trial;  which  toofether  with  the  questions  properly 
answered,  si^'iied  and  sealed  you  will  return  to'^Us 
as  soon  as  possible.      Given  &c. 

N.  Bishop  of  N. 
N.  N.  Actuary." 

369.  F^orni  for  executing*  the  commission  to  ex- 
amine a  witness: 

In  the  name  of  the  Lord,  amen.  Since  the  Rev. 
C.  R.,  rector  of  the  church  of  M — ,  received  certain 
letters  from  the  Most  Rev.  bishop  of  this  diocese,  of 
the  following"  tenor  (insert  the  commissorial  letters;) 
therefore  the  aforesaid  Rev.  C.  R.  wishing-  to  execute 
the  aforesaid  letters  with  all  possible  promptness, 
had  me,  the  undersig-ned,  called  to  his  house,  and 
published  me  a  notary  created  by  episcopal  author- 
ity in  the  presence  of  the  undersig^ned  witnesses, 
and  administered  the  oath  which  I  took  for  the  pur- 
pose of  being"  a  legitimate  secretary  to  him  in  this 
cause.  These  thing"s  were  done  at  —  this  - —  day  of 
—  A.  D.  — .  I,  C.  R.  deleg"ated  commissioner.  I,  J. 
S.  was  a  witness.     I,  N.  N.  was  a  witness. 

I,  N.  N.  Actuary." 

"Consequently  the  aforesaid  A.  K.  was  called,  and 
before  me,  after  having"  taken  the  oath,  was  ques- 
tioned by  the  Rev.  C.  R.  the  delegfated  commissioner, 
and  he  replied  as  follows;  (Give  questions  and 
answers  in  detail.  Then  conclude  as  in  all  examina- 
tions of  witnesses  with  the  clause)  "which  being"  had 
and  accepted,  if  and  as  much  as  is  lawful,  at-the 
command  of  the  Rev.  deleg"ated  commissioner,  I  read 
to  the  witness  his  deposition,  which  he,  not  wishing- 
to  chang"e,  was  ordered  tosig"n,  with  the  formal  pre- 
cept under  oath  to  keep  secret  the  contents  thereof. 
These  thing's  were  done  in  —  this  —  day  of  — 
A.  D.  — . 

Sig"ned,  C.  R.  Witness. 

C.  R.  Commissioner  Deleg"ated.     N.N.  Actuary." 


COMMISSORIAL    LETTERS.  333 

If  several  witnesses  are  to  be  examined,  the  same 
method  is  persued  for  each  and  when  the  work  is 
completed,  the  return  is  made  to  the  bishop. 

370.  When  a  witness  is  to  be  examined  in  the  dio- 
cese of  another  bishop,  remissorial  letters,  contain- 
ing a  summary  statement  of  the  case  and  the  ques- 
tions on  which  it  is  desired  to  have  the  testimony  of 
the  witnesses,  are  sent  to  the  bishop  or  vicar  g'en- 
eral  of  that  diocese,  and  he  then,  according"  to  art. 
19  of  "Cum  magnopere,"  will  have  the  witness  ex- 
amined and  will  return  the  testimony.  The  bishop 
who  receives  the  letters  will  appoint  a  competent 
notary  for  the  examination.  The  acts  of  the  case 
will  read: 

"After  this,  when  the  V.  Rev.  Vicar  g^eneral 
found  it  necessary  that  N.  N.  be  examined  as  a  witness 
and  his  presence  could  not  be  had  because  he  lives  in 
the  diocese  of  N —  he  decreed  that  remissorial  letters 
should  be  sent  to  the  V.  Rev.  D.  K.  vicar  g-eneral 
and  ordinary  judgfe  of  that  diocese.  Therefore  let- 
ters were  sent  him  of  the  following-  tenor: 

"Very  Rev.  Sir: — Since  it  is  necessary  for  me  to 
have  the  testimony  of  a  certain  N.  N.,  living-  in  the 
diocese  of  N — in  the  case  of  (mention  the  case)  which 
is  now  on  trial  before  me,  and  since  you  are  known 
to  be  ordinary  judg*e  in  the  said  diocese;  I  deem  it  well 
to  ask  your  help.  Wherefore,  I  beg"  you  to  have  the 
aforesaid  N.  N.  appear  before  you,  or  your  deleg^ate, 
and  have  him  examined  on  oath  before  a  properly 
constituted  notary  who  will  write  down  his  testi- 
mony; and  return  his  deposition  properly  attested  to 
me.  I  enclose  a  summar}^  of  the  case  and  points  on 
which  questions  are  to  be  asked,  which  are  the  fol- 
lowing*: 1^'  &c.  (Give  summar}"  and  questions.) 
Meanwhile  oifering-  ni}^  services   in  similar  cases  I 


334  LEGAL    FORMULARY. 

trust  God  may  have  you  in  his  holy  keeping.     Given 
at  — .     Date  — . 

N.  N.  Vicar  General. 
N.  N.  Actuary." 

371.  The  judg-e  who  has  received  the  remissorial 
letters  w^ill  execute  them  as  follows: 

"In  the  name  of  the  Lord,  amen.  Since  the  V. 
Rev.  D.  K.  vicar  g^eneral  of  the  Most  Rev.  Bishop 
N.  has  received  from  the  V.  Rev.  N.  N.  vicar  g"en- 
eral  and  ordinary  judg*e  in  the  diocese  of  N —  certain 
remissorial  letters  of  the  following*  tenor:  (give  con- 
tents}; therefore  the  aforesaid  V.  Rev.  D.  E.,  vicar 
general,  decreed  to  order  them  executed  according  to 
law.  Wherefore  calling  me,  the  undersigned 
actuary  of  the  episcopal  curia,  he  ordered  the  re- 
quested examination  to  be  held.  These  thing's  were 
done  at  —  this  —  day  of  —  A.  D.  — . 

D.  E.  Vicar  General. 
N.  Actuary." 

"In  consequence  N.  N.  was  called  and  being*  duly 
sworn  was  questioned  by  the  V.  Rev.  D.  E.,  vicar 
g'eneral  and  being*  asked he  replied ." 

The  examination  should  be  closed  as  above  in  n. 
369.  The  original  acts  will  then  be  sealed  and  sent 
to  the  vicar  general  who  requested  that  the  witnesses 
be  examined. 


CHAPTER  VII. 

FORMS   FOR   EXAMINING    WITNESSES. 

372.  If  the  bishop  proceeds  against  a  cleric  because 
some  one  lodg^ed  a  complaint,  it  is  absolutely  neces- 
sary for  the  bishop  to  institute  a  summary  investiga- 
tion before  even  paternal  punishments  are  inflicted 
and  before  he  may  presume  to  cite  the  cleric  for  trial. 
If  the  bishop  proceeds  ex  officio  agfainst  the  cleric 
because  of  public  ill-fame  and  rumors  which  have 
come  not  once  but  often  to  his  ears,  then  he  must 
first  have  leg-al  proof  of  the  ill-fame.  For  safety  in 
every  criminal  process,  no  matter  how  it  starts,  the 
bishop  should  first  obtain  proof  of  the  ill-fame  of  the 
accused,  for  otherwise  an  appeal  migfht  be  made  and 
reversal  mig-ht  occur.  The  ill-fame  required  by  law 
is  such  that  starts  from  honest,  not  malevolent  per- 
sons; and  which,  moreover,  has  come  not  once  but 
often  to  the  ears  of  the  superior.  {Cf.  c.  J^ualiter 
et  quando.)  This  ill-fame  must  be  proved  to  exist 
by  the  testimony  of  at  least  two  competent  witnesses, 
who  must  testify  not  only  that  the  accused  is  in 
ill-fame  before  the  public,  but  must  state  the  names 
of  persons  who  suspect  him.  From  this  it  can  be 
seen  whether  the  persons  are  malevolent  or  trust- 
worthy, enemies  or  unprejudiced. 

373.  This  examination  reg^arding*  ill-fame  must  be 
made  ex  officio,  and  following*  is  a  form  for  entering* 
in  the  acts  the  judicial  inquiry  reg'arding'  ill-fame: 

335 


336  LEGAL    FORMULARY. 

"In  consequence  the  same  V.  Rev.  Vicar  general 
cited  to  appear  before  him  in  —  on  the  —  day  of  — 
A.  D.  — ,  John  N.  and  James  N.  witnesses  called  ex 
officio.  And  when  on  the  appointed  day  John  N. 
appeared  and  took  the  oath  to  tell  the  truth  he 
replied  as  follows: 
To  g^eneral  questions: 

1.  Asked  what  is  his  name?      He  replied,  John  N. 

2.  Asked  his  ag^e?     He  replied,  30  years. 

3.  Asked  where   he   lives  and  for  how  long?     He 
replied . 

4.  Asked  what  business  he  is  in?     He  replied 


These  and  similar  general  questions  are  always  to 
be  asked  even  though  the  witness  is  well  known. 
They  are  for  the  record  and  the  higher  court  in  case 
of  appeal. 

To  special  questions: 

1.  Asked  whether  the  people  connected  with  the 
church  in  N.  live  good  lives,  or  whether  evil  reports 
exist?  He  replied,  the  reports  about  Rev.  N.  are 
not  the  best. 

2.  Asked  what  reports?  He  replied,  people  say 
he  drinks  hard,  curses  and  quarrels. 

3.  Asked  who  say  so?  He  replied,  it  is  common 
talk  in  town. 

4.  Asked  of  whom  he  heard  thrs?  He  replied,  I 
heard  it  from  Andrew  N.  the  post-master,  Matthew 
Q.  the  butcher,  Luke  S.  the  lawyer. 

5.  Asked  whether  he  knows  or  heard  that  these 
persons  are  enemies  ot  Rev.  N.?  He  replied,  I  think 
they  are  not  enemies. 

6.  Asked  what  was  the  occasion  and  from  whom 
this  ill-fame  started?  He  replied,  they  saw  Rev.  N. 
drunk  in  a  saloon  and  we  all  knew  he  did  not  say 
mass  on  Sunday. 

7.  Asked  how  long  this  report  is  around?  He 
replied,  this  last  is  about  six  weeks  old,  but  other 
things  happened  before. 

After  the  examination,   the  actuary  will  read  his 


DECREE    OF    ILL-FAME.  337 

deposition  to  the  witness,  so  that  he  can  add  or  cut 
out  or  change  parts  if  he  wishes.  Then  the  witness 
will  sig'n  the  deposition  and  wmU  be  instructed  to 
keep  secret  the  whole  matter.  Then  the  following  is 
inserted  in  the  acts: 

"Which  deposition  being  made  and  accepted,  if 
and  as  much  as  allowed  by  law,  at  the  order  of  the 
V.  Rev.  Vicar  General  I  read  his  deposition  to  the 
aforesaid  witness,  which,  not  wMshing  to  change,  he 
was  ordered  to  sign  and  did  sign,  and  he  was  in- 
structed to  keep  silence  on  the  matter  of  the  exami- 
nation .  These  things  were  done  at  —  the  —  day  of — 
A.  D. — .  N.  Vicar  General. 

I,  John  N.  Witness.  N.  N.  Actuary." 

374.  In  the  same  way  the  witness  James  N.  is  to 
be  examined,  and  if  the  testimony  of  both  agrees,  or 
if  after  further  examination  the  vicar  general  or 
judge  finds  that  ill-fame  exists,  he  will  declare  it  in 
these  or  similar  words:  "We  judge  that  ill-fame 
exists  regarding  Rev.  N.  and  we  wish  to  further 
proceed  against  him  according  to  law."  The  actuary 
will  record  it: 

"Considering  the  depositions  of  the  aforesaid  wit- 
nesses the  V.  Rev.  Vicar  general  (judge)  pronounced 
that  ill-fame  is  shown  and  he  decreed  to  further  pro- 
ceed according  to  law  against  the  said  Rev.  N.  as 
defamed.  These  things  were  done  at  —  this  —  &c. 
I,  N.  Vicar  General.     I,  N.  Actuary." 

375.  If  the  ill-fame  is  not  shown  or  if  it  appears  to 

have  been  started  by  enemies  or  malevolent  persons, 

the  judge  will  so  pronounce  and  add  that  no  further 

proceedings  will  be  taken.     After  taking  testimony 

some  decision  must  be  given.      The  actuarv  \\\l\  make 

the  record: 
44 


338  LEGAL   FORMULARY. 

"Considering"  the  depositions  of  the  witnesses,  the 
V.  Rev.  Vicar  g-eneral  (judg-e)  recog'nizin^  that  the 
evil  reports  had  their  orig-in  from  enemies  (or  fac- 
tionaries  or  garrulous  persons  or  that  the  ill-fame  is 
not  proved)  and  that  Rev.  N.  N.  is  riot  defamed  be- 
fore just  and  prudent  men,  pronounced  that  ill-fame 
is  not  shown  and  therefore  on  that  account  no  fur- 
ther proceeding's  will  be  had.     These  things  were 

done  at &c. 

N.  N.  Judge. 
N.  N.  Actuary." 

376.  After  the  declaration  of  ill-fame  the  vicar 
general  (judge)  will  proceed  as  mentioned  above  in 
n.  374.     The  acts  may  be  written  thus: 

"Considering"  that  ill-fame  exists  ag*ainst  Rev.  N. 
N.  and  considering'  also  the  charges  and  complaints 
made  by  responsible  persons  (omit  this  latter  if  com- 
plaints are  not  introduced  into  process),  the  V.  Rev. 
Vicar  general  determined  and  by  this  decree  orders 
further  proceedings  to  be  had,  by  investigating  the 
accused  through  the  examination  of  witnesses  and 
doing  other  thing-s  prescribed  by  law.  In  conse- 
quence he  ordered  cited  the  following  witnesses  &c. 
These  things  were  done  at  —  this  — day  of —  A.  D. — . 

N.  N.  Vicar  General. 
N.  Actuary." 

377.  The  citations  having-  been  issued  and  served 
as  stated  in  nos.  356-357  above,  and  the  records  be- 
ing- made  of  the  same,  on  the  appointed  day  the  wit- 
nesses are  examined  and  the  acts  may  read: 

"In  consequence  of  citation,  the  witness  Andrew 
N.  appeared  on  the  —  day  of  —  a.  d.  — and  being 
duly  sworn  deposed  and  said: 
To  g-eneral  questions: 

1.  Asked  his  name?     He  said,  Andrew  N. 

2.  Asked  his  ag-e?     He  replied,  42  years. 


EXAMINATION    OF    WITNESSES.  339 

3.  Asked  where  he  lives  and  for  how  long-?  He 
replied,  in  X  for  20  j^ears. 

4.  Asked  his  occupation?     He  replied,  post-master. 

5.  Asked  whether  married?  He  replied,  yes,  and 
have  family  of  three  children. 

6.  Asked  what  parish  he  belong-s  to?  He  replied, 
St.  Ann's. 

(These  and  similar  g-eneral  questions  should  be 
asked  of  each  witness  and  answers  recorded  in  the 

acts.) 

To  special  questions: 

(Beg-innino-  with  article  1^  "that  Rev.  N.  N. 
drinks  to  excess,"  as  charg'ed  in  ex  officio  complaint 
by  vicar  gfeneral  now  under  investig^ation,  mentioned 
in  n.  342  above.  But  this  article  should  not  be  read 
to  the  witness,  nor  should  any  Icadiiig'  question  be 
put  under  pain  of  nullity  of  the  deposition.  Hence 
questions  must  only  be  put  which  g-radualh^  lead  to 
the  articles  to  be  proved.) 

7.  Asked  you  say  you  live  in  X,  what  church  do 
you  attend?     He  replied,   St.  Ann's. 

8.  Asked  who  is  the  rector  of  St.  Ann's?  He  re- 
plied, N.  N. 

9.  Asked  does  Rev.  N.  N.  sa}^  mass  every  day? 
He  replied,  I  think  not. 

10.  Asked  why  he  thinks  Rev.  N.  N.  does  not  say 
mass  every  day?  He  replied,  because  he  sometimes 
omits  it  on  Sundays  when  he  should  say  mass. 

11.  Asked  on  what  Sundays  did  Rev.  N.  N. 
neg^lect  mass?  He  replied,  on  June  5  and  on  June  12 
last. 

12.  Asked  was  there  no  mass  said  in  St.  Ann's 
on  those  Sundays?     He  replied,  no. 

13.  Asked  why  Rev.  N.  N.  did  not  sa}'  mass?  He 
replied,  because  he  was  drunk. 

14.  Asked  how  he  knew  Rev.  N.  was  then 
drunk?  He  replied,  I  saw  him  often  in  saloons,  and 
saw  him  drunk  on  the  streets  before,  and  when  Luke 


340  LEGAL    FORMULARY. 

S.  inquired  at  the  rc-ctory  the  first  Sunday,  he  over- 
heard Rev.  N.  cursinor  and  calling-  for  liquor. 

15.  Asked  did  he  himself  see  Rev.  N.  on  either 
Sunday?     He  replied,  no. 

16.  Asked  when  did  he  himself  see  Rev.  N.  in 
saloons?  He  replied,  often,  but  especially  Saturday 
before  Sunday,  June  5. 

17.  Asked  what  was  condition  of  the  Rev.  N.  at 
that  time?  He  replied,  he  was  so  drunk  he  had  to 
be  helped  home. 

18.  Asked  v^ho  helped  Rev.  N.  home?  He  replied, 
one  man  was  Matthew  Q.  the  butcher. 

19.  Asked  how  he  knew  Luke  N.  heard  Rev.  N. 
cursing-  and  calling-  for  liquor  on  Sunday,  June  5? 
He  replied  Luke  S.  told  me  so  when  he  returned 
from  the  rectory. 

20.  Asked  does  Rev.  N.  attend  to  other  duties,  as 
sick  calls?  He  replied.  Rev.  N.  could  not  or  did  not 
g-ive  last  sacraments  to  Y.  Z.  who  died  without 
them. 

21.  Asked  how  he  knows  this?  He  replied,  I  went 
to  the  rectory  for  him  myself,  and  the  servant  would 
not  let  me  see  him.  But  I  heard  him  talking-  as  if 
insane  and  cursing-  and  calling-  for  drink. 

22.  Asked  did  you  hear  Rev.  N.  curse  when  sober? 
He  replied,  yes,  especially  once  when  he  g-ot  very 
ang-ry  and  struck  N.  N. 

23.  Asked  when  this  took  place?  He  replied, 
about  three  months  ag-o. 

24.  Asked,  did  Rev.  N.  strike  anyone  lately?  He 
replied,  it  is  said  publicly  that  he  struck  and  injured 
G.  H.,  but  I  did  not  see  the  striking-.  I  saw  G.  H. 
afterwards  and  he  told  me  so. 

25.  Asked  where  he  saw  G.  H.  who  was  struck? 
He  replied,  at  his  home,  where  he  is  still  laid  up  on 
account  of  the  blow. 

26.  Asked  does  he  know  who  saw  the  encounter? 
He  replied,  I  heard  Charles  T.  and  Thomas  S.  were 


EXAMINATION   OF    WITNESSES.  341 

at  a  short  distance  and  ran  up  and  stopped  the  fuss, 
and  carried  G.  H.  home. 

27.  Asked,  did  he  himself  ever  have  any  trouble 
with  Rev.  N?  He  replied,  I  never  had  any  trouble 
with  him;  but  I  do  not  fancy  his  conduct,  and  really 
wish  he  w^ere  out  of  the  parish. 

28.  Asked  why  he  wishes  Rev.  N.  out  of  the 
parish?  He  replied,  because  of  the  scandal  and  the 
bad  example  for  my  children. 

29.  Asked,  does  he  contribute  to  the  support  of 
the  St.  Ann's  church?     He  replied,  yes. 

30.  Asked  how  and  what  amount?  He  replied  by 
pew  rent  and  collections,  about  S25  a  year. 

31.  Asked  does  he  g'ive  to  the  Christmas  collection 
for  the  pastor?     He  replied,  yes. 

32.  Asked  whether  he  belong-s  to  any  part}^  of  men 
who  have  taken  action  to  have  Rev.  N.  removed  from 
his  parish?  He  replied,  no,  but  several  asked  me  to 
write  to  the  bishop  on  the  matter. 

33.  Asked,  did  he  do  so?     He  replied,  I  did  not. 

34.  Asked  why  he  did  not  write?  He  replied,  I 
desired  to  keep  out  of  this  trouble. 

35.  Asked  you  said  you  saw  G.  H.  who  was 
struck  by  Rev.  N.;  did  G.  H.  tell  you  why  he  was 
struck?  He  replied,  because  he  upbraided  Rev.  N. 
with  saying"  mass  after  breaking"  his  fast. 

36.  Asked  do  you  know  that  Rev.  N.  did  so?  He 
replied,  all  I  know  is  that  Jacob  S.  and  Frank  Z. 
told  me  he  did  so. 

These  questions  being  asked  and  answered,  and 
accepted,  if  and  in  as  much  as  allowed  legally,  at 
the  order  of  the  V.  Rev.  vicar  general  N.  N.,  I 
read  his  deposition  to  the  witness,  and  when  he  was 
asked  whether  he  w^ished  to  change  it  by  adding  to 
or  deducting  from  it  he  replied  he  did  not.  There- 
upon   he    was   ordered   to   sign   it,    and   to   observe 


342  LEGAL    FORMULARY. 

secrecy.     These  thino-s  were  done  at  —  this  —  day 
of  —  A.  D.  — . 

Sig'ned,  Andrew  N.  Witness. 

N.  N.   Vigar  General. 
N.  N.  Actuary." 

378.  It  will  be  seen  from  the  above  examination 
that  all  the  four  points  of  the  charg'es  made  by  com- 
mon rumor  as  laid  down  in  n.  342  in  the  vicar  gfen- 
eral's  ex  officio  investig^ation  have  been  specifically 
covered.  It  is  also  possible  from  the  testimony  of 
this  witness  to  show  that  he  has  no  enmity,  but  is 
competent.  An  opening  is  also  made  for  the  testi- 
mony of  other  witnesses  whose  names  this  witness 
g'ave  on  certain  points.  A  careful  judg-e  will  have 
the  counts  of  the  indictment  before  him  when  ques- 
tioning* witnesses,  so  as  not  to  overlook  important 
matters,  and  not  to  allow  the  testimony  to  remain 
incomplete.  Thus  from  question  36  he  will  remem- 
ber to  cite  the  persons  therein  mentioned,  and  will 
thus  g'ather  another  charg^e.  The  fiscal  procurator 
will  then  introduce  also  this  new  charg^e,  as  is  done 
in  n.  346,  when  he  ex  officio  files  his  complaint,  if 
such  judicial  criminal  process  becomes  necessary. 
After  taking"  testimony  leg"ally  as  above  for  the  sum- 
mary investig-ation,  the  advantage  for  subsequent 
acts  is  apparent. 

379.  In  a  similar  manner  the  other  witnesses  are 
examined,  each  separately.  If  any  of  the  witnesses 
states  something"  favorable  to  the  accused,  it  should 
be  followed  up  and  investig^ated.  All  the  testimony 
should  then  be  carefully  compared  and  weig'hed.  In 
case  a  witness  cannot  come  to  the  curia  on  account  of 
illness,  as  in  the  case  of  the  man  struck  by  Rev.  N., 


EXAMINATION    OF    WITNESSES.  343 

then  the  judg-e  and  the  notary  may  go  to  take  his 
testimony  at  his  house.  In  the  case  supposed  in  n. 
377,  this  witness,  judg-ing-  from  answer  35  of  Andrew 
N.,  mig-ht  g-ive  valuable  testimon}^  regfardino-  Rev. 
N.  saying"  mass  after  breaking-  his  fast.  The  acts 
will  then  read: 

"Witness  N.  N.  This  witness  being-  confined  to 
his  house  by  injuries  could  not  come  to  the  tribunal; 
therefore  the  V.  Rev.  Vicar  g-eneral,  with  me  accom- 
panying- him  went  to  him.  The  witness  being-  duly 
sworn  at  —  on  the  —  day.of  —  A.  D.  — ,  deposed  and 
said,  &c." 

380.  When  an  examination  is  interrupted  for  any 
cause,  the  acts  may  read  thus: 

"Because  of  the  lateness  of  the  hour  (or  other  rea- 
son) the  V.  Rev.  Vicar  g-eneral  could  not  complete 
the  examination  of  the  aforesaid  witness  and  decreed 
to  interrupt  it  temporarily,  with  the  intention  how- 
ever, of  resuming-  and  completing-  it.  The  witness, 
however,  having-  heard  his  deposition  read  and  ac- 
cepted, St  et  i)i  quantum,  was  ordered  to  sig-n  it. 
These  thing's  were  done  &c. 

Sig-ned,  N.  Witness. 

N.  Judg-e. 
N.  Actuary." 

Later  when  the  examination  is  resumed  the  acts 
will  read: 

"The  V.  Rev.  Vicar  g-eneral  wishing-  to  continue 
the  examination  of  the  same  witness,  N.  N.,  ordered 
him  recalled  and  the  oath  being-  ag-ain  administered 
and  taken  bv  him  at  —  on  the  —  dav  of  —  A.  D.  — , 
he  further  deposed  as  follows:" 

381.  Sometimes  it  becomes  necessary  to  introduce 
documents  as  proof.     If  these  are  official,  there  is 


344  IvEGAL    FORMULARY. 

little  trouble  to  show  authenticity.  If  they  are  pri- 
vate letters,  it  may  be  necessary  to  prove  the  hand- 
writing-. This  may  be  done  by  witnesses  who  know 
the  writing-.     Below  is  a  short  form  of  examination: 

"Witness  is  cited,  sworn  and  asked  gfeneral  ques- 
tions as  usual.     Then  he  is  asked: 

1.  Asked  do  you  know  E).?     He  replied,  I  do. 

2.  Asked  have  you  corresponded  with  him?  He 
replied,  formerly  I  did. 

3.  Asked  would  you  know  his  handwriting-?  He 
replied,  I  would. 

4.  Asked  would  he  be  able  to  select  his  handwrit- 
ing- from  any  others?     He  replied,   yes,   very  easily. 

Then  the  V.  Rev.  Vicar  g-eneral  offered  several 
papers  to  the  witness,  among-  them  being-  that 
alleg-ed  to  be  E.'s.  The  witness  without  hesita- 
tion chose  a  paper  and  said  "This  is  the  handwriting- 
of  E.  and  in  fact  it  was  the  writing-  alleg^ed  to  be 
that  of  E." 

The  deposition  should  be  closed  in  the  usual  way. 
Then  a  second  witness  should  depose  to  the  same 
effect. 


CHAPTKR  VIII. 

FORMS   FOR   CITING    THE    ACCUSED. 

382.  When  the  informative  process  is  completed, 
the  vicar  o-eneral  or  jud,i>-e  should  carefully  vveig"h 
the  testimony.  If  he  does  not  find  at  least  half-full 
proof  of  guilt  all  further  ,  proceeding's  must  be 
stopped.  But  if  there  is  certainly  at  least  half-full 
proof  of  guilt,  he  may  proceed  to  cite  the  accused. 
The  instruction,  Art.  21,  says  that  all  proofs  should 
be  collected  before  the  accused  is  cited.  Hence  we 
say  the  judg*e  may,  not  must,  cite  the  accused  if  he 
has  at  least  undoubted  half-full  proof  of  guilt.  But 
a  prudent  judge  will  not  issue  a  citation  unless  he 
has  prima  facie  evidence  sufficient  to  convict,  i.  e., 
such  full  proof  that  if  not  offset  by  the  accused  will 
convict  him.  It  should  be  remembered  that  to-day 
when  an  accused  cleric  is  criminally  cited  and  tried, 
he  must  be  absolutely  convicted  or  declared  innocent. 
He  cannot  be  dismissed  with  the  sentence  ''ex  hac- 
tenus  deduct  is''  not  g*uilt3\  Such  a  sentence  is  now 
illegal.  {Cf.  S.  C  EE.  d-  RE.  n  Sept.  i8iS;  ii 
Sept.  1804.)  Again,  when  once  tried,  he  cannotagain 
be  tried  on  the  same  charges.  Hence  we  say  a  pru- 
dent judge  acting  ex  officio  under  the  procedure,  will 
not  cite  an  accused  person  unless  he  has  prima  facie 
full  proof  of  guilt. 

383.  The  decision  of  the  vicar  g*eneral  whether  or 

i5  345 


346  IvEGAIv    FORMULARY. 

not  to  cite  the  accused  may  be  entered  in  the  acts  as 
follows: 

"Since  from  the  proceeding's  had  up  to  the  present 
there  appears  at  least  half-full  proof  of  the  crimes 
charg^ed  ag^ainst  Rev.  N.  N.,  namely,  (state  charg-es) 
and  since  sufficient  appears  from  the  informative 
process  to  authorize  the  citing*  and  examining*  of  the 
accused,  the  V.  Rev.  Vicar  g"eneral  (judg'e)  decreed 
to  cite  and  examine  the  said  Rev.  N.  N.  and  to  proceed 
further  according*  to  law.     Done  at  —  this  —  day  of 

—  A.  D.  — .  N.  N.  Vicar  General  (Judg-e.) 

N.  N.  Actuary." 

But  if  less  than  half-full  proof  was  found  then  a 
decree  is  issued  not  to  proceed  further: 

"Since  from  the  informative  process  now  finished 
not  even  half-full  proof  has  arisen  concerning-  the 
alleg"ed  crime  of  Rev.  N.  N.,  namely  (state  charg^e;) 
and  since  by  this  very  fact  that  is  wanting*  which 
the  law  demands  as  necessary  before  citation  may  be 
issued  to  the  said  accused;  therefore  the  V.  Rev. 
Vicar  g^eneral  (judg'e)  has  decreed  that  no  further 
proceeding's    shall  be  taken  ag-ainst  him.     Done   at 

—  this  —  day  of  —  A.  D.  — . 

N.  N.  Vicar  General  (Judg'e.) 
N.  N.  Actuary." 

384.  The  accused  must  be  cited  in  writing'  and  in 
the  citation,  unless  prudence  demands  the  contrary, 
the  accusations  must  be  made  known.  In  case  it  is 
not  expedient  to  make  known  the  accusations,  it  is 
sufficient  to  state  that  the  accused  is  cited  in  order 
that  he  may  defend  himself  in  a  cause  concerningf 
which  an  investig'ation  is  being'  made  ag^ainst  him. 
A  copy  of  the  charg'es  may  be  enclosed  and  merely  a 
reference   to  the  copy  is  sufficient  in  the  citation. 


CITATION    OF    THE    ACCUSED.  347 

{Cf.  ''Cum  viag'no'pere,'^  Art.  21-2J.)  The  accused 
should  be  cited  personal!}^  b}^  court  messengers,  or 
where  there  are  none,  by  some  other  person  or  by 
reg"istered  letter.  {Cf.  Art.  i^f..)  When  the  accused 
cannot  be  reached,  either  because  he  hides  himself  or 
has  fled  or  his  address  is  unknown,  then  a  citation 
may  be  left  at  his  usual  place  of  residence  or  he  may 
be  cited  by  edict  affixed  in  some  public  place,  as  on 
the  doors  of  the  parish  church. 

385.  The  first  citation,  according'  to  Art.  24  of 
"Cum  mag-nopere,"  should  be  a  simple  one  without 
threat.  Should  the  accused  neg"lect  the  first  sum- 
mons, then  a  second  should  be  griven  in  which  a  per- 
emptory term  is  assigned  for  his  appearance  and 
notice  is  gfiven  that  if  he  fails  to  appear  within  that 
time  he  will  be  adjudg^ed  contumacious.  Should  he 
transgress  this  second  and  peremptory  citation, 
WMthout  showing"  a  leg'itimate  impediment,  he  wmII  be 
held  de  facto  contumacious.  Under  the  "Cum  mag-- 
nopere"  three  citations  are  no  long'er  necessary. 
Nor  does  it  appear  that  in  extraordinar}^  circum- 
stances the  rig-ht  to  combine  the  two  citations  into 
one  peremptory  citation  is  taken  aw^ay,  provided  in 
the  one  peremptory  citation  the  required  warning*  is 
g^iven  concerning-  contumac}'.  Because  nothing-  is 
enacted  to  the  contrary,  it  seems  that  the  "cong-ru- 
ous  time"  to  be  g-iven  in  a  peremptory  citation  is 
twenty  days.  The  g-eneral  practice  allow^s  ten  days 
for  each  of  three  citations,  or  thirty  da^'s  in  all.  By 
limiting-  the  number  of  citations  to  two,  the  "Cum 
mag-nopere"  may  also  be  said  to  have  shortened  the 
time  to  twenty  days. 

386.  The  citation  should  clearly  express  the  name 


348  LEGAIv    FORMULARY. 

of  the  person  cited,  the  cause  as  stated  above,  the 
name  of  the  judg-e  who  cites,  the  place  where  and 
the  time  within  which  the  accused  is  to  appear.  The 
citation  should  also  state  whether  it  is  the  first  or 
the  second  and  peremptory  summons.  Following*  is 
a  form  to  be  used  under  the  "Cum  mag'nopere" 
process: 

"We,  N.  N,,  vicar  g"eneral  of  the  Most  Reverend 
Bishop  N.,  since  the  report  has  come  to  us  concern- 
ing" certain  offenses  alleged  to  have  been  committed 
by  Rev.  N.  N.,  a  copy  of  which  as  chargfed  is  sent 
herewith,  and  since  the  evidence  concerning*  these 
offenses,  as  in  the  acts  of  the  informative  process,  is 
sufficient  to  compel  us  to  pronounce,  as  we  did  pro- 
nounce, that  public  defamation  exists  ag^ainst  the 
said  Rev.  N.  N.  and  that  this  defamation  has  its 
orig"in  not  in  enemies  and  malevolent  but  in  serious 
minded  persons;  therefore  in  order  to  satisfy  the  re- 
quirements of  our  office  we  have  decreed  to  cite  for 
examination  the  aforesaid  Rev.  N.  N.,  as  by  these 
presents  we  do  cite  him,  to  personally  appear  before 
us  in  the  episcopal  curia  within  the  space  of  (ten 
days  from  the  date  of  this  citation,  which  is  the  first. 
Given  &c)  twenty  days  from  the  date  of  this  citation, 
of  which  we  assig^n  ten  days  for  the  first  and  ten 
days  for  the  second  and  peremptory  term,  this  one 
warning-  being-  sufficient  for  the  two  canonical  warn- 
ing-s  required  by  "Cum  magfnopere."  Therefore 
should  the  aforesaid  Rev.  N.  N.  fail  to  appear 
within  the  said  peremptory  term,  unless  legitimately 
impeded,  let  him  know  that  we  shall  proceed  by  law 
ag-ainst  him  as  contumacious,  without  any  other  or 
further  warning-.  Given  in  the  episcopal  chancery 
at  —  the  —  day  of  —  A.  D.  — . 

N.  Vicar  General. 
N.  Actuary." 

387.   Following- is  a  form  of  citation  by  edict  which 


CITATION   OF    the:   ACCUSED.  349 

can  be  affixed  to  the  door  of  the  diocesan  chancery, 
parish  church,  or  other  public  place,  especialh'  in 
quasi-notorious  cases  when  the  accused  cannot  be 
reached  or  has  fled  from  the  diocese: 

"We,  N.  N.  vicar  general  of  the  Most  Reverend 
Bishop  N.  do  by  these  presents  command,  cite  and 
expressly  order  that,  within  the  peremptory  term  of 
twenty  days  from  the  date  of  these  presents,  the 
Rev.  N.  N.  who  is  said  to  be  g-uiltv  of  certain  of- 
fenses,  namely,  (express  the  char^jfes  if  prudence 
allows  it;  otherwise  say,  which  will  be  made  known 
to  him)  shall  appear  in  the  chancery  office  (or  usual 
place  for  court)  to  inform  the  curia,  to  see  the  oaths 
of  witnesses,  to  make  publication  of  the  acts  and 
lastly  to  hear  sentence,  under  pain  of  having"  con- 
fessed the  crime  and  other  punishment  by  law  estab- 
lished.    Given  in  &c.     Dated  &c. 

N.  Judg-e. 
N.  Actuary." 

388.  When  it  is  necessary  to  appl}^  to  a  neig-hbor- 
ing"  bishop  to  serve  a  citation  in  his  diocese,  the  acts 
may  read: 

"Thereafter,  because  the  V.  Rev.  Vicar  g-eneral 
knew  that  the  aforesaid  Rev.  N.  N.  was  staying"  in 
the  diocese  of  N — ,  in  order  that  the  citation  niig'ht 
surelv  reach  him  he  ordered  that  remissorv  letters 
be  sent  to  V.  Rev.  N.  vicar  g-eneral  and  ordinary 
judg"e  in  that  diocese.  Which  letters  were  expedited 
and  are  of  the  following-  tenor:  V.  Rev.  Sir — Since 
it  is  known  that  3^ou  are  ordinary  judge  in  the  dio- 
cese of  N —  and  since  w^e  are  informed  that  Rev.  N. 
N.,  a  priest  subject  to  the  jurisdiction  of  our  Most 
Rev.  Bishop,  is  staying"  in  your  diocese,  but  whom  it 
is  my  dut}"  to  cite  for  a  criminal  cause  now  pending 
ag"ainst  him  in  this  curia;  it  therefore  was  judged 
prudent    to  ask  you    to  have  the    enclosed  citation 


350  LEGAL   FORMULARY. 

served  throug"h  one  of  your  officials  on  the  aforesaid 
Rev.  N.  N.  personall}^  or  in  the  place  of  his  usual 
residence  and  to  have  a  -judicial  report  of  said  service 
transmitted  to  me  (enclose  citatioi,i.)  Meanw^hile 
offering'  my  services  I  pray  God  to  have  you  in  his 
keeping-.     Given  &c.  N.  Vicar  General. 

N.  Actuary." 

The  actuary  of  the  diocese  to  which  such  requisi- 
tion is  sent  will  formulate  his  report  thus: 

"In  the  name  of  the  Lord,  amen.  Since  the  V. 
Rev.  N.  N.  vicar  g-eneral  of  our  Most  Rev.  Bishop, 
received  from  V.  Rev.  N.  N.,  vicar  g-eneral  and  ordi- 
nary judge  in  the  diocese  of  N — ,  certain  remissorial 
letters  of  the  following*  tenor;  (insert  letters  as 
above)  therefore  the  aforesaid  V.  Rev.  Vicar  g'en- 
eral  decreed  to  execute  them  according-  to  law. 
Wherefore  he  consigfned  the  aforesaid  citation  to 
N.  N.  our  official  messeng*er,  and  ordered  him  to 
serve  it  personally,  or  in  his  usual  place  of  residence, 
on  Rev.  N.  N.  The  said  messeng*er  having*  returned 
to  me,  the  actuary,  made  report  that  he  had  served 
and  left  a  copy  of  the  said  citation  on  the  said  Rev. 
N.N.  Done  at  —  this  —  day  of — A.  D. — .  I,  N.  N. 
messenger  affirm  as  above.       I,  N.  Vicar  General. 

I,  N.  Actuary." 

This   process  is  then  sealed  and  forwarded  to  the 

vicar  g-eneral   who  made   the   requisition.      He   will 

then  have  the  actuary  make  an  entry  in  the  acts  as 

follows: 

"The  aforesaid  remissorial  letters  were  executed 
concerning-  which  the  V.  Rev.  Vicar  g-eneral  received 
a  judicial  report  as  follows:"  (Insert  the  above 
report.) 

However,  since  a  verbal  citation  is  not  considered 
an  act  of  jurisdiction  it  may  be  served  in  the  diocese 
of  another  bishop  by  reg-istered  mail  or  even  by  mes- 
seng-er,  if  good  policy  allows  it. 


CHAPTER   IX. 

CONTUMACY   OF    THE   ACCUSED. 

389.  When  the  citation  has  been  served  on  the  ac- 
cused, it  may  happen  that  for  g-ood  cause  he  cannot 
appear  within  the  appointed  time.  To  excuse  his  ab- 
sence, but  not  to  plead  for  him,  he  may  send  a  procu- 
rator. {,Cf.  Mag-aliiis^  Praxis  Crim.  C.  /j,  ;/.  j6). 
It  is  far  safer  to  send  a  procurator  than  a  mere  letter 
which  may  be  ig-nored.  The  accused  may  send  word 
before  the  expiration  of  the  time  for  appearance  and 
ask  an  adjournment.  The  judgfe  will  consider  the 
reasons  g^iven,  and  if  he  approves  them,  will  ^rant  the 
request  in  writing*  and  order  the  actuary  to  make 
proper  entry.  If  he  disapproves  them  and  orders 
proceeding's  continued  without  adjournment,  the 
actuary  will  make  proper  entr}"  in  the  acts: 

"Thereafter,  the  said  Rev.  N.  N.  throug^h  his  pro- 
curator asked  from  the  V.  Rev.  N.,  the  judg-e,  a 
prorog-ation  of  the  peremptory  term  set  for  his  ap- 
pearance because  of  certain  impediments  which  ren- 
dered his  coming-  impossible.  The  excuse  seemed 
reasonable  to  the  said  V.  Rev.  Judg^e,  and  he  there- 
upon adjourned  the  peremptory  term  for  appearance 
to  —  (g-iving-  the  exact  date.)"  Or,  "The  excuse 
offered  did  not  seem  reasonable  to  the  V.  Rev.  Judge, 
and  therefore  he  decreed  that,  without  paying*  at- 
tention to  it,  further  proceedings  should  be  had. 
Done  at  —  this  —  day  of  —  A.  D.  — . 

N.  N.  Judg-e. 
N.  Actuary." 

351 


352  LEGAL    FORMULARY. 

390.  It  may  happen  that  the  peremptory  term  has 
elapsed  without  the  accused  appeariug-.  If  such  is 
the  case,  on  the  first  day  after  the  expired  peremp- 
tory terfu,  the  judg*e  will  call  in  open. court  the  name 
of  the  accused,  and  if  no  one  appears,  the  fiscal  pro- 
curator will  ex-officio  move  that  the  accused  be  de- 
clared in  contumacy.  Under  the  "Cum  ma^nopere" 
only  one  accusation  of  contumacy  is  necessary,  not 
three  as  is  customary  in  some  places.  But  this  must 
be  made  only  after  the  peremptory  term  has  ex- 
pired. If  a  procurator  answers  for  the  accused  and 
offers  reasons  for  his  non-appearance,  the  judg-e  will 
consider  the  reasons,  and  if  he  deems  them  sufficient,  ' 
will  then  make  an  order  which  the  actuary  will 
enter: 

"But  since  the  said  Rev.  N.  N.  did  not  appear  be- 
fore the  expiration  of  the  peremptory  term,  in  order 
that  he  mig"ht  escape  punishment  for  contumacy  he 
sent  a  procurator  to  g-ive  the  jud^e  reasons  for  his 
absence.  Which  reasons  the  judg^e  considered  leg*it- 
imate,  and  consequently  declaring-  the  said  Rev.  N. 
N.  not  to  be  contumacious,  he  assigfned  another  per- 
emptory term  for  his  appearance,  namely  —  (gfive 
exact  date.)     Done  &c. 

N.  Judg-e. 
N.  Actuary." 

391.  But  if  no  one  appears  and  no  excuse  is  g^iven 
or  if  the  excuse  offered  is  frivolous,  the  fiscal  pro- 
curator will  say: 

"I  accuse  Rev.  N.  N.  of  contumacy,  inasmuch  as 
being-  peremptorily  cited,  and  reported  cited  and  not 
appearing-,   he  is  contumacious  and  I  move  he  be  so 

declared." 

The  judge  will  then  make  his  order  or  declara- 


DECREE   OF    CONTUMACY.  353 

tioti  and  the  actuary  will  enter  it  in  the  acts.     If  the 
excuse  is  disallowed  the  entry  will  be: 

"But  since  the  said  &c  (as  in  390.)  Which  reasons 
the  judg-e  did  not  consider  leg-itimate,  and  conse- 
quently, on  motion  of  the  fiscal  procurator,  he  de- 
clared the  said  Rev.  N.  N.  to  be  in  contumacy  and 
ordered  proceedings  a^^^ainst  him  according  to  law; 
and  further  ordered  that  the  trial  proceed  in  his  ab- 
sence and  appointed    N.  N.  as  advocate  to  represent 

him  and  set as  the  term  ad  prodiicoidiim  oiniiia. 

Done  &c.  N.  Judg-e. 

N.  Actuary." 

Or  the  actuary  will  enter  the  following-  according- 
to  circumstances: 

"On  the  —  day  of  —  A.  D.  — ,  (the  day  after  per- 
emptory term)  when  Rev.  N.  N.  was  called  in  court, 
and  neither  himself  nor  another  for  him  offered  an 
answer,  the  fiscal  procurator  ex  officio  moved  that 
the  said  Rev.  N.  N.  who  was  peremptorily  cited,  re- 
ported cited  and  did  not  appear,  be  declared  contu- 
macious. Consequently  the  V.  Rev.  N.,  vicar  gen- 
eral, declared  that  the  said  Rev.  N.  N.  had  fallen^in- 
to  contumacy  and  decreed  to  proceed  against  him  as 
contumacious,  and  further  decreed  to^continue  the 
trial  in  the  absence  of  the  accused.  Wherefore  the 
V.  Rev.  Judg-e  ex  officio  appointed  N.  N.  as  the  ad- 
vocate to  represent  and  defend  the  said  contumacious 
Rev.  N.  N.  and  ordered  the  trial  to  proceed  according- 

to  law  and  appointed  as  the  term  ad  producen- 

diun  ojiinia.     Done  at  —  this  — ■  day  of  —  A.    D.  — . 

N.  Judg-e. 
N. "Actuary." 

392.  It  must  be  noted  that  after  the  accused  is  de- 
clared contumacious,  there  are  really  two  proceeding-s 
instead  of  one.     The  original  trial  is  continued  as  in 

the  "Cum  magnopere,"  and  proofs  are  offered  of  the 
46 


354  LEGAL    FORMULARY. 

^uilt  of  the  accused;  for  although  contumacy  consti- 
tutes a  very  strong-  presurn^tion  of  the  guilt  of  the 
accused,  still  it  is  not  proof.  The  trial  on  the 
charges  will  then  proceed  in  the  absence  of  the 
accused  and  notices  regarding  it  thereafter  will  be 
given  to  the  advocate  appointed  for  the  accused  in- 
stead of  to  the  accused  himself.  The  contumacy  of 
the  accused  may  be  mentioned  in  the  definitive  sen- 
tence on  the  charges,  to  hear  which  definitive  sen- 
tence the  contumacious  accused  should  for  safety  be 
cited,  as  well  as  his  advocate. 

But  there  arises  through  contumacy  a  second  pro- 
ceeding against  the  accused  which  should  be  kept 
distinct  from  the  trial  on  the  charges  but  which  may 
be  inserted  as  part  of  the  acts  in  the  original  case. 
After  the  judge  has  declared  the  accused  in  contu- 
macy he  should  issue  to  him  a  monitory  citation, 
summoning  him  to  show  cause  why  he  should  not  be 
punished  for  contempt.  This  citation  is  essential 
and  necessary  for  validity  before  sentencing  for  con- 
tempt or  contumacy.  {Cf.  Zitelli,  Ap.  /.  £c. pg-,  505/ 
Svialzgruber  I.  2,  t,  /^,  n.  ^^\  and  I.  2,  /.  (5,  n.  55/ 
Cone.  Trid.  sess.  25,  c.  j  de  re/;  see  also  n.  jj^ 
above.) 

The  council  of  Trent  requires  that  at  least  two 
monitions  should  be  given  before  censure  for  contu- 
macy is  passed,  but  these  two  monitions  may  be  com- 
bined into  one  peremptory  citation,  if  mention  is 
made  of  such  fact  in  the  citation.  The  forms  given 
in  n.  360-363  above  for  the  punishment  of  a  contu- 
macious witness  may  be  used  imitatis  mutandis  for 
the  canonical  monition,  citation  and  sentence  of  a 
contumacious  accused  person.      But  in  the  case  of 


WARNING    BEFORE   CENSURES.  355 

both  it  should  be  remembered  that  lesser  punishment 
must  first  be  inflicted,  and  only  as  a  last  resource 
excommunication.  In  fact  Pierantonelli,  Praxis 
-pg-.  1J4.,  and  Droste-Messmer,  Procedure  -pg".  ijj, 
hold  that  excommunication  can  be  inflicted  only  when 
no  other  punishment  can  be  executed  on  the  contu- 
macious person.  This  applies  a  fortiori  when  only 
a  witness  is  contumacious.  If  after  fallinor  into  con- 
tumacy, the  accused  repents  and  appears,  he  must 
first  purg^e  himself  of  contempt  of  court  and  be  de- 
clared free  from  it  before  he  may  take  part  in  the 
trial  on  the  charges.  If  the  trial  on  the  charges  is 
concluded  and  definitive  sentence  passed  while  he  is 
in  contumac}^  he  cannot  appeal  against  such  sentence. 
However,  he  may  always  show  that  he  was  not  really 
contumacious.  If  he  can  g-ive  such  proof,  he  may 
then  have  a  new  trial.  Hence  it  is  advisable  for  a 
judg*e  to  depend  on  proof,  not  on  contumacy,  for  in- 
flicting- severe  sentences. 


CHAPTER  X. 

CHALLENGE   OF    THE   JUDGE.       ARBITERS. 

393.   When   the   accused   appears   in  court  within 
the  peremptory  time,  before  he  pleads  to  the  charg-es, 
if  he  has  any  exceptions  to  make  he  should  at  once 
propose  them.     Especially  must  this  be   done  if  he 
excepts  ag'ainst  the  judg'e  or  challeng-es  him  for  cause. 
This  exception  must  be  made  first,  and  within  twenty 
days  after  the  citation.     {Cf,  L.  offerattir  /,  c.  de  lit. 
coni.)     Later    he    may    make    others,    such    as    res 
judicata,  or  prescription.     Hence  as  soon  as  served 
with  the  citation  he  should  at  once  en^ag"e   a  com- 
petent advocate,  whose  instructions  he  should  follow 
exactly.     This  advocate  will  send  word  of  his  being* 
retained  to  the  bishop  of  the  accused,   and  formally 
ask  approval,  unless  from  his   well-known  character 
or  previous  approval  he  is  supposed  approved.     In 
any  event  he  must  inform  the  curia  that  he  acts  as 
"defensor."     He   may    accompany  the    accused  and 
advise  him  what  to  do  or  avoid  doing"  in   answer  to 
the  citation.     The  accused  undoubtedly  at  all  times 
may  be  accompanied  by  his  advocate,  thoug-h  he  can- 
not be   represented  by  a  procurator.     However,   ac- 
cording- to  Art.  30  of  "Cum  mag^nopere,"  and  n.  315 
of  Third  Plen.  Coun.  Baltimore,  the  accused  himself 
may  also  be  represented  by  his  advocate  in  the  sum- 
ming- up  of   the  process,  at   which  time  and  during* 

356 


RECUSATION   OF    JUDGE.  357 

the  sentence  the  accused  may  be  absent  if  he  wishes. 
At  other  times  he  must  be  present. 

394.  Following-  is  a  form  for  presenting  a  recusa- 
tion of  the  judge  which  should  be  in  writing  and 
state  the  reasons.     {Cf.  L.  i6,  c.  dc  jud.) 

Diocese  of  N — 

vs. 
Rev.  N.  N. 

"Comes  now  on  the  —  day  of  —  A.  D.  — ,  before 
the  V.  Rev.  Vicar  general,  the  Rev.  N.  N.,  the  ac- 
cused in  this  case,  and  with  all  due  showing  of 
honor  and  reverence  for  the  said  V,  Rev.  Vicar  gen- 
eral, says  that  the  person  of  the  said  vicar  general  is 
by  him  suspected,  because  he  is  an  enemy  and  be- 
cause the  chief  complainants  and  witnesses  in  this 
case,  namely  X.  Y.  and  C.  D.,  are  either  relatives 
or  intimate  friends  of  the  said  vicar  general.  Where- 
fore for  the  above  and  other  reasons  he,  the  accused, 
Rev.  N.  N.  challen«fes  and  recuses  the  said  vicar 
general  as  judge,  and  asks  and  wishes  and  insists 
that  he  shall  no  longer  concern  himself  in  the~cause 
now  pending-  against  the  said  accused;  and  he  pro- 
tests the  nullity  of  the  proceedings,  if  notwithstand- 
ing this  present  recusation  the  said  V.  Rev.  Vicar 
general  continues  to  act.  Dated  — .  I,  N.^N. -ex- 
cept and  recuse  as  above. 

N.  Advocate  for  Defendant. 

395.  The  actuarywill«enter  the  recusation  in  the 
acts,  and  the  vicar  g-eneral  will  either  appoint  a 
judge-delegate  for  the  case  with  the  consent  of  the 
accused,  or  transmit  the  whole  case  to  the  higher 
tribunal,  or  make  anorder'^that  arbiters  be  chosen  to 
decide  on  the  merits  of  the  recusation.  If  arbiters 
are  chosen,  the  judge  selects  one,  the  accused  the 
other.  These  two,  if  they  cannot  agree,  choose  a 
third,   and  the  decision   of  the  majority  is  binding. 


» > 


358  LEGAL   FORMULARY. 

They  first  examine  whether  the  reasons  alleg^ed  in 
the  challeng-e  are  sufficient  if  true,  and  then  they 
examine  whether  the  reasons  are  really  true.  Fol- 
lowing" is  a  form  for  entry  in  the  acts:  . 

"Appearing*  personally  in  the  curia  before  the  V. 
Rev.  N.  vicar  general,  with  the  fiscal  procurator. 
Rev.  Q.  and  myself  as  actuary  present,  the  accused 
Rev.  N.  N.  came  and  offered  the  following  recusa- 
tion against  the  said  V.  Rev.  Vicar  general,  as 
judge.     (Insert  words  of  challenge  as  above.) 

Consequently  the  V.  Rev.  Vicar  g-eneral  ordered 
the  said  recusation  placed  in  the  acts  which  was  in- 
serted as  above,  and  is  found  in  the  original  among 
the  documents  and  is  marked .  He  further  or- 
dered that  arbiters  should  be  chosen  according-  to 
law  to  determine  the  merits  of  the  recusation,  and 
for  himself  selected  Rev.  M.  as  one  arbiter  and 
ordered  that  the  selection  of  Rev.  O.  who  was  chosen 
by  the  accused  as  a  second  arbiter,  be  noted  in  the 
acts  of  the  process.  Further  he  ordered  an  adjourn- 
ment of  this  trial  on  the  charges,  until  the  question 
of  the  recusation  shall  have  been  determined.  Done 
in  the  curia,  this  —  day  of  —  A.  D.  — . 

N.  Vicar  General. 
N.  Actuary." 

396.  The  arbiters  must  refuse  or  file  acceptance 
with  the  judg^e  who  will  order  it  entered  in  the  acts. 
Then  the  arbiters  will  meet  as  soon  as  possible  and 
with  the  same  actuary,  or  another,  will  examine  and 
determine  the  law  and  facts  on  which  the  challeng'e 
is  based,  and  will  report  their  decision  in  writing*  to 
the  challeng*ed  judg-e  who  will  order  their  finding" 
and  their  acts  entered  in  the  acts  of  the  original 
process.  Following"  is  a  form  for  recording"  the  acts 
of  the  arbiters: 


TRIAL    BY    ARBITERS.  359 

"In  the  name  of  the  Lord,  amen.  Since  in  the 
cause  which  is  pendino-  agfainst  Rev.  N.  N.  before 
the  V.  Rev.  Vicar  g^eneral,  the  said  Rev.  N.  N.  re- 
cused and  challeng'ed  the  said  vicar  creneral  as  sus- 
pected, and  since  to  determine  the  validity  of  this 
recusation,  according*  to  law  and  the  practice  of  this 
curia,  Rev.  M.  and  Rev.  O.  were  chosen  respectively 
by  the  parties,  and  their  nomination  was  made  known 
to  them  and  their  acceptance  of  the  office  of  arbiter 
was  received,  as  all  appears  in  the  acts  of  the  process; 
therefore  the  aforesaid  Rev.  M,  and  Rev.  O.  the  chosen 
arbiters,  wishing-  to  fulfill  their  duty  according"  to  law 
convened  in ,  and  having  summoned  me  the  un- 
dersigned as  actuary  in  this  matter,  who  was  al- 
ready employed  in  the  case  by  the  vicar  general  as  is 
in  the  acts,  thev  called  Rev.  N.  N.  who  had  chal- 
lenged  the  V.  Rev.  Vicar  general  as  suspected,  and 
having  administered  to  him  an  oath,  which  he  also 
took,  that  he  recuses  the  said  vicar  general,  as 
judge,  not  from  fraud  or  with  the  intent  of  calumny 
but  only  for  his  own  defense,  he  was  ordered  to  show 
the  cause  of  his  challenge,  and  to  produce  witnesses 
and  other  legitimate  proofs,  by  which  the  truth  and 
substance  of  such  a  charge  might  be  sustained. 
The  said  Rev.  N.  N.  thereupon  produced  a  cop}'  of 
the  challenge  presented  to  the  aforesaid  V.  Rev. 
Vicar  general  and  said  to  the  Rev.  arbiters  that  it 
contained  the  reasons  for  his  challenge  and  he  filed 
a  list  of  the  witnesses,  namel}"  (X.  and  Z. )  to  prove 
his  statements,  and  asked  that  his  proofs  be  ad- 
mitted by  the  Rev.  arbiters  and  that  they  proceed  to 
examine  both  the  law  and  the  facts  in  the  case.  The 
Rev.  arbiters  admitted  the  aforesaid  copy  of  the 
challenge  and  documents,  si  et  i)i  q2iantum,  and  or- 
dered proceedings  according  to  law.  The}"  ordered 
me  as  actuary  to  receive  the  said  challenge  and  place 
it  in  the  acts  which  I  did,  and  it  is  found  among-  the 
documents  marked .     Done  at  —  this  —  dav  of — 

A.  D.   — . 


360  LEGAL    FORMULARY. 

I,  M.  Arbiter.     I,  O.  Arbiter.     I,  N.  N.  recuse  and 
affirm  as  above.  N.  Actuary." 

"Thereafter,  the  aforesaid  arbiters,   convening  in 
their  accustomed   place,   examined  the  cause  of  the 
recusation  as  expressed   in   the   challeng-e   produced 
before  them  by  the  said  Rev.   N.  N.,  and  when  they 
noticed  that  it  was  founded  on  a  suspicion  of  enmity 
which  is  alleg-ed  to  exist  between  the  said  V.   Rev. 
Vicar  g^eneral  who  was  challenged  and  the  said  Rev. 
N.  N.  who  challeng'ed  him,  and  also  on   close  rela- 
tionship between  the  accusing-  parties  and  the  said 
V.    Rev.   Vicar  g-eneral,   they  pronounced    that  the 
said  cause  was  legitimate  in  law;  and  that  therefore 
investigation  should  be  made  to  determine  whether 
such  enmity  and   close  relationship  existed  in  fact. 
Consequently  the  Rev.  arbiters  decreed  to  proceed  to 
the  examination  of  witnesses  produced  by  the  said 
Rev.  N.   N.   who  challenged.     Wherefore  X.  being 
called  as  a  witness  and  being  duly  sworn  was  asked 
&c."     (Here  is  given  the  examination  of  the  witness 
on  the  point  in  question,  according  to  the  form  given 
in  n.  373  or  377  above.) 

397.  The  arbiters  must  examine  witnesses  and 
documents  offered  by  the-  challenger.  Then  it  is 
proper  for  them  to  ask  the  challenged  judge  whether 
he  has  anything  he  wishes'^to  oppose  to  the  allega- 
tions of  the  challenger.  This  should  be  recorded  in 
the  acts: 

"Afterwards  the  Rev.  arbiters,  thinking  it  proper 
to  hear  also  the  V.  Rev.  Vicar  general,  the  chal- 
lenged judge,  in  order  that  he  might  oppose,  if  he  so 
wished,  the  proofs  brought  by  the  Rev.  N.  who 
challenged,  ordered  me,  the  actuary,  to  carry  to  the 
V.  Rev.  Judge  the  acts  of  the  process  thus  far  held 
before  the  arbiters,  and  to  give  him  an  opportunity 
of  reading  them.  Which  command  I  having  fulfilled, 
the  said   V.   Rev.   Vicar  general,    having  seen  and 


JUDGMENT    BY    ARBITERS.  361 

read  the  acts,  thanked  me,  and  said  he  had  nothinof 
to  oppose  to  the  recusation.  (Or)  And  the  said  V. 
Rev.  Vicar  general  later  called  me  and  g-ave  me  a 
writing-  in  which  are  found  the  points  he  opposes  to 
the  alleg"ations  of  the  challengfer,  Rev.  N.  N.,  and  he 
ordered  me  to  present  it  to  the  Rev.  arbiters. 
Which  when  I  did  the  aforesaid  arbiters  ordered  me 
to  insert  the  paper  in  the  acts.  This  I  did  marking- 
it    ■ among-    the    documents.      In    testimony   &c. 

Dated  &c.  I,  N.  Actuary." 

398.  If  the  vicar  g-eneral  wishes  the  arbiters  to 
examine  witnesses  for  his  side,  thev  will  do  so  and 
insert  the  examinations  in  the  acts.  They  will  then 
consider  the  proofs  and  g-ive  written  judg-ment  in 
about  this  form: 


"In  the  name  of  the  Lord,  amen.  We,  M.  and  O. 
chosen  "arbitri  juris"  and  respectivel}^  selected  by 
the  parties  to  decide  in  the  matter  of  the  challeng-e 
and  recusation  as  judg-e,  made  by  Rev.  N.  N.,  an  ac- 
cused person,  ag-ainst  the  person  of  the  V.  Rev.  Vicar 
g'eneral;  having-  examined  witnesses  and  the  proofs 
produced  on  each  side,  and  having-  heard  the  parties 
informing-  on  each  side,  and  having-  fully  discussed 
the  merits  of  the  cause;  having-  only  God,  the  source 
of  justice,  before  our  eyes,  we  say  that  in  no  way, 
neither  fully,  nor  half-full}''  are  the  reasons  of  the 
alleg-ed  challeng-e  sustained,  namely,  (here  g-ive  the 
reasons  advanced  by  the  challeng-er.)  Therefore  we 
decide  that  the  aforesaid  challeng-e  and  recusation  is 
of  no  force,  and  by  it  the  ordinary  jurisdiction  of  the 
V.  Rev.  N.,  vicar  g-eneral  and  ordinary  judg-e,  is  in 
no  wise  impeded  from  prosecuting-  the  cause  beg-un 
ag-aiust  the  aforesaid  Rev.  N.  N.  Thus  we  have 
pronounced  this  —  day  of  —  A.  D.  — . 
I,  M.  Arbiter.       I,  O.  Arbiter.  N.  Actuary." 

47 


362  LEGAL    FORMULARY. 

399.  However  if  the  reasons  for  challeng"iiig"  were 
half-fully  proved  the  decision  will  be: 

"In  the  name  (&c  to  the  words  'we  say'j.  We 
say  that  the  reasons  for  the  challeng^e  and  recusation 
are  sufficiently  proved  namely,  (g"ive  reasons); 
therefore  we  decide  that  the  aforesaid  challeng-e  is 
sustained  as  legitimate  in  law  and  fact;  and  we  say 
that  the  aforesaid  V.  Rev.  Vicar  general,  the  ordi- 
nary judg-e,  should  abstain  from  the  prosecution  (or 
beginning")  of  the  cause  ag'ainst  Rev.  N.  N.,  thechal- 
leng-er;  and  the. said  vicar  gfeneral  is  oblig^ed  to  refer 
it  to  the  hio-her  court,  or  to  deleg^ate  for  the  said 
cause  another  judg-e,  free  from  suspicion,  with  the 
consent  of  the  aforesaid  challeng^er.  Thus  we  have 
pronounced  this  —  day  of  —  A.  D.  — . 
I,  M.  Arbiter.     I,  O.  Arbiter.        I,  N.  Actuary." 

The  decision  and  all  the  acts  of  the  arbiters  will 
be  entered  in  the  acts  of  the  process  ag^ainst  the  ac- 
cused, and  thus  become  part  of  that  process.  The 
vicar  general,  or  judg"e,  will  then  make  the  order 
required  in  the  circumstances,  which  will  also  be 
entered  in  the  acts  in  the  usual  way. 


CHAPTER  XL 

HEARING      GIVEN      THE      ACCUSED.  LEGAIvIZING 

OFFENSIVE   PROCESS. 

400.  When  the  accused  comes  into  court  not  to 
propose  exceptions,  but  for  a  hearing-  on  the  charg-es, 
the  judg-e  will  direct  the  fiscal  procurator  to  read 
the  charges  to  the  accused  and  give  him  a  cop}'  if  he 
has  not  already  received  one  with  the  citation.  If  a 
copy  has  been  given  with  the  citation  an  immediate 
hearing  may  be  had;  but  if  the  accused  first  learns 
the  charges  on  appearing-  in  obedience  to  the  citation, 
it  is  certain  that  a  reasonable  dela}'  must  be  accorded 
him  before  the  hearing. 

The  accused  is  not  obliged  to  make  any  statement 
at  this  time,  except  he  wishes  to  plead  guilty  and 
take  his  punishment.  The  accused  is  not  bound  to 
confess  his  guilt,  nor  has  the  judge  any  right  to  in- 
sist on  his  answ^ering-  questions  which  would  convict 
him.  Neither  can  the  judge  force  the  accused  to 
answer  any  questions  at  this  stage  of  the  process. 
The  practice  of  extorting  a  confession  is  no  longer  in 
vogue.  The  intent  of  this  preliminary  hearing  is 
that  it  is  a  favor  or  defense  for  the  accused,  and  gives 
him  a  chance  to  present  exceptions  and  possibly  clear 
himself.  This  is  evident  from  Art.  25  of  the  "Cum 
mag-nopere,"  where  it  says  "audiatur,"  and  orders 
that  the  statement  be  examined    which  he  makes  in 

363 


364  LEGAL   FORMULARY. 

his  own  favor.  It  is  now  forbidden  to  require  the 
oath  from  the  accused.  Unless  the  accused  has  a 
conclusive  proof  that  he  is  innocent,  the  less  he  sa3^s 
at  this  stag-e  of  the  proceeding-s,  the  better  for  him- 
self. He  should  allow  the  fiscal  procurator  to  make 
his  proofs  without  any  assistance. 

401.  When  the  fiscal  procurator  has  read  the 
charg-es,  the  judg-e  asks  the  accused  what  he  has  to 
say.  He  usually  replies,  "I  am  not  g-uilty  of  the 
thing's  charg^ed."  This  is  really  the  litis  co7itestatio 
in  the  criminal  case,  and  thereafter  the  fiscal  procu- 
rator cannot  alter  the  charg-es.  He  may  chang-e  his 
capitula  or  specifications  because  they  have  not  yet 
been  presented  to  the  judg^e.  Sometimes  the  accused 
explains  away  the  whole  case,  but  this  seems  rarely 
possible.  At  other  times  by  saying*  too  much  he 
completes  the  case  for  the  prosecution.  With  this 
end  in  view,  the  judg-e  also  asks  questions,  but 
the  accused  is  now  not  oblig-ed  to  answer  them.  His 
mere  word  will  not  be  proof  if  in  favor  of  himself, 
but  it  will  be  a  confession  if  it  is  ag*ainst  himself. 
Therefore  he  will  say  nothing",  if  prudent,  except  to 
enter  a  g-eneral  plea  of   "not  g-uilty." 

402.  After  this  first  hearing*  g-iven  to  the  accused, 
the  fiscal  procurator  may  find  it  necessary  to  chang^e 
his  specifications,  either  by  dropping-  some,  or  modi- 
fying- the  lang-uag-e  of  others.  He  is  entitled  to  an 
adjournment  for  this  purpose  if  he  asks  it.  How- 
ever, if  he  is  ready  to  proceed,  he  may  hand  his 
capitula  or  specifications  to  the  judg-e  immediately 
after  the  hearing-  of  the  accused  is  ended.  The 
judg-e  will  either  admit  them  as  offered  or  modify 
them  according- to  the  canons.     After  being- admitted 


EXAMINATION   OF    ACCUSED.  365 

by  the  judg^e  they  can  no  long^er  be  chang-ed  by  the 
fiscal  procurator.  The  specifications  are  read  to  the 
defendant  on  the  day  appointed  ad  dicendiivi  contra 
capitula,  and  to  each  of  these  specifications  he  is 
oblig-ed  to  make  a  specific  reply  if  the  judg-e  so  orders. 
But  a  refusal  cannot  now  be  taken  for  an  admission 
of  the  specification,  for  the  accused  is  not  under  oath. 
He  should  make  a  careful  specific  answer  and  may 
also  offer  counter  specifications. 

403.  The  entry  in  the  acts  of  the  hearing-  g-iven  the 
accused  may  be  as  follows: 

"Appearing"  personally  in  the  curia  before  the 
V.  Rev.  Vicar  g-eneral,  with  the  fiscal  procurator, 
Rev.  Q.,  and  myself  as  actuary  present  on  the  — 
day  of  —  A.  D.  —  the  accused  Rev.  N.  N.  was  ad- 
monished to  tell  the  truth  and  was  asked: 

Q.   What  is  his  name?     He  replied,  N.  N. 

O.  Where  he  lives?     A.  In  X—. 

Q.   What  is  his  position?     A.   Rector  of  St.  Ann's. 

Q.  Was  he  ever  before  under  charg-es  in  the  curia? 
A.  No. 

Q.  What  does  he  say  to  the  present  charg-es? 
A.   Not  guilty. 

Q.  Has  he  anything-  more  to  say?  A.  Not  at 
present. 

Q.  Did  he  not  receive  a  canonical  precept  on  cer- 
tain points?     A.   Yes. 

Q.  Did  he  keep  the  precept  g-iven?  A.  He  does 
not  recollect  ever  breaking-  it. 

Q.  Does  he  say  mass  on  Sundays?  A.  He  prefers 
to  answer  no  more  questions  at  present.  (Or  other 
questions  as  occasion  requires  may  be  asked.) 

Which  being-  had  and  received,  si  et  in  quantum, 
on  the  order  of  the  V.  Rev.  Vicar  g-eneral  the  afore- 
said questions  and  answers  were  read  by  me  to  the 
said  Rev.  N.   N.,  who,   having-  been  asked   whether 


366  LEGAL   FORMUIvARY. 

he  wished  to  make  any  chang'es  therein  and  replying* 
he  did  not,  was  ordered  to  subscribe  the  said  exami- 
nation. Done  this  —  day  of  —  A.  D.  — .  I,  N.  N. 
testify  as  above.  N.  Vicar  General. 

N.  Actuary." 

"The  hearing-  of  the  accused  being-  finished  as 
stated  above  the  V.  Rev.  Vicar  general  assig-ned  to 
the  fiscal  procurator,  as  a  term  for  offering-  the  spec- 
ifications, next  (Thursday)  the  —  day  of  — ;  and  he 
cited  the  accused  to  appear  on  that  same  day  at  9 
a.  m.  to  hear  the  specifications  of  the  procurator  and 
to  reply  to  them.     Done  this  &c. 

N.  Vicar  General. 
N.  Actuary." 

(Or)  "The  hearing  of  the  accused  being-  finished 
as  above,  and  the  fiscal  procurator  being-  read}^  with 
his  specifications,  he  presented  them  to  the  V.  Rev. 
Judge,  who  ordered  them  read  to  the  accused.  The 
specifications  are  as  follows:  The  fiscal  procurator 
specifies  and  on  denial  intends  to  prove,  1^  that  a 
regular  canonical  precept  was  g-iven  the  accused  on 
May  31,  1898,  ordering  him  to  practice  sobriety  and 
to  cease  frequenting-  places  where  liquor  is  sold; 
2°  that  the  accused  since  the  precept  has  frequented 
such  places;  3°  that  since  the  precept  the  accused 
has  been  drunk  on  the  streets  of  X;  4°  that  on  the — 
day  of  last  —  when  in  a  drunken  condition  several  men 
assisted  in  taking  him  to  his  home.  (Other  specifica- 
tions may  be  drawn,  based  on  the  precept  in  n.  332 
and  the  libellus  n.  346,  for  which  the  fiscal  has  proof 
on  hand.)  The  accused  being  asked  successively  re- 
garding- each  specification  admitted  the  first,  denied 
the  second,  third,  fourth.  (Record  exactly  what  the 
accused  answered..) 

"Which  replies  of  the  accused  being  g-iven  and  re- 
corded were  read  to   the  accused  and  he  not  wishing* 


lyEGAIvI^ING    PREVIOUS    TESTIMONY.  367 

to  chanofe  them  in  any  way  was  ordered  to  subscribe 
them.     Done  &c.     I,  N.  reply  as  above. 

N.  Vicar  General. 
N.  Actuary." 

404.  If  the  procurator  demands  an  adjournment  to 
collect  his  proofs  it  must  be  g"iven  and  recorded  in 
the  acts.     If  not,  then  continue  the  acts: 

"Thereafter,  the  fiscal  procurator  informed  the 
judge  that  all  the  documents  and  testimony  of  wit- 
nesses which  for  the  present  he  would  present,  were 
now  before  the  court.  Thereupon  the  V.  Rev.  Vicar 
o-eneral  asked  the  accused  whether  he  would  accept 
and  hold  the  witnesses  as  being- rigfhtly  and  lawfully 
examined,  saving-  the  exceptions  and  repetitions 
which  may  occur.  The  accused  declared  that,  sav- 
ing- the  exceptions  and  repetitions  which  may  occur 
he  will  and  does  hold  and  accept  the  witnesses  as 
properly  and  lawfully  examined  and  accepted.  He 
was  then  ordered  to  subscribe  such  declaration  in 
the  acts.  Done  &c.  I,  N.  declare  and  accept  as 
above.  N.  Vicar  General.     N.  Actuary." 

405.  The  publication  of  the  testimony  previousl}^ 
taken  ag^ainst  the  accused  and  of  the  other  documents 
offered  by  the  fiscal  procurator  to  sustain  his 
charg-es  is  essential.  How  it  must  be  done  is  dis- 
puted. The  safest  way  is  to  have  the  actuary  read 
it  to  the  accused  in  court.  {Cf.  Ill  C.  Bait.  n.  J14.) 
This  will  serve  not  only  as  a  publication  and  leg-ali- 
zation  of  the  process,  but  also  as  a  verbal  confronta- 
tion of  the  witnesses,  which  is  also  required,  unless 
a  personal  one  takes  place.  Usually  the  accused 
will  leg-itimize  the  process  by  declaration.  However 
if  he  refuses  to  do  so,  a  repetition  of  the  testimony 
must  take  place  for  the  validit}^  of  the  process. 


368  LEGAL    FORMULARY. 

406.  But  in  order  that  the  leg'alization  of  the 
process,  "especially  throug"h  confrontation,  may  be 
less  complicated  and  tedious,  it  will  be  advisable,  that 
in  case  the  accused  refuses  to  legitimate  the  process 
through  declaration,  no  -personal  but  only  a  verbal 
confrontation  of  the  witnesses  take  place;  that  is, 
that  instead  of  the  witnesses  being  personally  placed 
in  the  presence  of  the  accused,  only  their  depositions 
be  read  to  him  by  the  judge  and  notary  and  he  be 
allowed  to  make,  and  to  have  put  on  record,  what- 
ever exceptions  he  desires  to  make  against  the  per- 
sons and  the  depositions  of  the  witnesses.  With 
this  act  the  process  becomes  legitimized  in  all  things 
whatsoever,  w^hether  they  are  already  begun,  or  are 
yet  to  be  begun,  even  though  the  written  defenses 
have  already  been  handed  in,  and  that  with  all  the 
legal  effects  of  a  true  and  real  legitimation."  (Or- 
cidar  of  S.  Cong-.  BB.  and  RR.  Atig.  /,  i8^i.) 

407.  Following  is  a  form  of  legalization  by  way  of 
verbal  confrontation: 

"Date .     The  accused  N.  N.  having  appeared 

before  the  judge  and  me  the  notary,  was  again  ad- 
monished to  tell  the  truth  respecting  himself  and 
was  sworn  to  tell  the  truth  in  regard  to  other 
parties.  Thereupon  for  the  purpose  of  legalizing 
the  process,  the   testimony  of  the    witnesses  N.   and 

N.   examined  under  dates  of  was  read   to  the 

accused  in  full  and  word  for  word.  Being  then 
asked  whether  he  had  anything  to  say  against  the 
persons  or  depositions  of  the  witnesses,  and  being 
informed  at  the  same  time,  that  by  this  act  he  was 
deprived  of  all  right  to  have  the  witnesses  repeat 
their  testimony,  he  answered:  After  you,  the  vicar 
general  (judge)  have  caused  the  notary  here  present 
to  read  for  me  the  depositions  of  the  witnesses  N.  and 


CONFRONTATION    OF    WITNESS.  369 

N.  examined  under  date  of  —  and  having-  fully 
understood  them,  I  have  to  say  &c.  (Here  follow  his 
answers  which  must  be  recorded  exactly  by  the 
actuary.)  Afterwards  &c."  (About  reading  and 
sigfning-  by  accused  and  judg-e  and  notar3\) 

408.  It  must  be  noted,  however,  that  the  circular 
quoted  above  does  not  prohibit  personal  confronta- 
tion of  the  witnesses.  Personal  confrontation  is  the 
practice  in  all  secular  courts  in  the  United  States 
and  has  been  introduced  into  France  and  other  coun- 
tries as  well  as  the  United  States  in  church  courts. 
It  is  in  much  better  accord  with  g-eneral  sentiment 
than  a  mere  verbal  confrontation,  which  latter  ren- 
ders a  cross  examination  practically  impossible. 
Moreover,  under  cross  examination  lying-  witnesses 
will  be  discovered  more  easily.  In  trial  for  capital 
offenses  (deposition  from  parish)  the  defendant  may 
demand  a  personal  confrontation.  This  is  a  form  in 
such  case: 

"Date .  In  presence  of  the  judg-e,  fiscal  pro- 
curator and  me,  the  actuary,  and  of  the  accused, 
for  the  purpose  of  legfalizing-  the  process,  the  previous 
deposition  made  by  the  witness  N.  under  date  of  — 
was  read  to  the  said  witness  in  full,  and  word  for 
word.  Being-  asked  whether  he  now  confirmed  his 
previous  statements  or  whether  he  wished  to  chang-e 
them  in  an}^  point,  he  answered:  (Here  follow  the 
answers  of  the  witness.)  After  this  the  accused 
was  asked  whether  he  had  anything-  to  say  ag-ainst 
the  person  or  deposition  of  the  witness  and  being-  in- 
formed &c.,  (as  in  previous  form  in  n.  407.)" 

This  confrontation  must  take  place,  of  course,  in 
the  court  in  presence  of  the  judg-e,  fiscal  procurator, 
actuary,  and  the  accused.     The  witness  must  be  put 

under  oath.     All  these  points  should  be  entered  in 

48 


370  LEGAL    FORMULARY. 

the  acts.     With  the  publication  of  the  acts,  the  oflFen- 
sive  process  becomes  complete. 

409.  When  the  testimony  has  been  legalized  the 
accused  or  his  advocate  may  demand  a  copy  of  the 
acts  and  it  is  recorded  in  this  form: 

"On  the  —  day  of  —  A.  D.  — ,  the  Rev.  N.,  the 
advocate  of  Rev.  N.,  the  accused,  appeared  be- 
fore the  V.  Rev.  Vicar  general  and  asked  that  an 
integral  copy  of  the  acts,  with  also  the  names  of  the 
witnesses,  be  given  to  him,  since  he  intends  to  except 
against  the  persons  of  these  witnesses,  as  well  as 
their  testimony,  saving  always  due  respect  for  the 
V.  Rev.  N.  the  vicar  general,  and  he  insists  in  this 
and  every  other  best  way.  I,  N.  N.  advocate,  ask 
and  insist  as  above. 

N.  Vicar  General. 
N.  Actuary." 

Following  is  a  form  for  recording  the  acts: 

"Thereafter  the  V.  Rev.  Vicar  general  ordered 
the  publication  of  the  proceedings  thus  far  had  in 
this  cause.  Consequently  by  his  order  the  whole 
processus  offensivus  was  read  in  a  loud  voice  in 
court;  which  being  done  the  same,  V.  Rev.  Vicar 
general  ordered  that  the  offensive  process  should  be 
held  for  published.  Wishing  moreover  to  grant  the 
accused  everything  necessary  according  to  law  for 
his  defense,  the  V.  Rev.  Vicar  general  assigned  him 
a  term  of  seven  days,  i.  e.,  on  —  as  the  date  for 
presenting  his  defense;  he  also  granted  his  request 
that  a  copy  of  the  acts  be  furnished  him  or  his  advo- 
cate, together  with  the  names  and  testimony  of  the 
witnesses,  since  he,  the  accused,  has  declared  that  he 
receives   and    accepts    their    testimony  "as    lawfully 

taken.     Done  &c.     Date . 

N.  Vicar  General. 
N.  Actuary." 


GIVING    COPY    OF    ACTS.  371 

"Wherefore  a  copy  of  the  aforesaid  acts,  collated 
and  authenticated,  word  for  word,  was  g-iven  to  the 
said  accused  (or  his  advocate),  who  received  it,  re- 
serving* to  himself  the  right  of  asking-  a  prolongation 
of  the  term  for  defense,  the  cross  examination  of  the 
witnesses  according  to  questions  to  be  proposed  by 
himself,  and  the  making  of  a  new  defensive  process; 
further  he  held  the  witnesses  examined  by  the  curia 
as  legitimately  examined  and  received;  concerning 
each  and  all  of  whom  he  expressly  made  declaration. 
Done  at  —  this  —  day  of  —  A.  D.  — .  I,  N.  N. 
(advocate)  affirm  the  above  to  be  true. 

N.  N.  Actuarv." 

At  the  bottom  of  the  copy  the  actuary  will  thus 
certify  to  it: 

"The  above  copy  was  collated  by  me,  word  for 
word,  with  its  original,  extant  with  me,  and  it 
agrees  therewith  in  all  things.  In  testimon\^ 
whereof  &c.  N.  N.  Actuary." 


CHAPTER  XII. 

DEFENSE   OF   THE   ACCUSED. 

410.  The  accused,  having-  learned  throug-h  the 
official  publication  of  the  process  what  charges  and 
testimony  are  against  him,  has  the  natural  and  legal 
rig-ht  to  defend  himself  by  producing*  testimony  and 
even  by  a  written  explanaton.  {^Cf.  Cum  inagno- 
■pere,  Art.  2'/-ji.^  So  necessary  is  this  defense  in 
criminal  cases,  that  the  judg^e  is  bound  to  grant  a 
term  for  it  even  though  the  accused  has  confessed 
the  charg-es  and  does  not  wish  a  defense.  (Com- 
munis DD.)  Moreover  if  the  accused  does  not  select 
an  advocate  at  this  stage  of  the  process  the  judge  is 
obliged  ex  officio  to  appoint  one  to  act.  (C/.  /.  c. 
Art.  J  I.)  The  documents  are  presented  and  wit- 
nesses examined  for  the  accused  in  the  same  manner 
as  for  the  prosecution,  the  forms  for  which  are  given 
above  in  n.  377-381.  When  the  defendant  has  pro- 
duced all  his  testimony,  the  prosecution  may  offer 
testimony  to  rebut  it,  and  again  the  defense  ma}^  op- 
pose the  rebuttal  with  other  testimony.  Then  the 
prosecution  usually  declares  that  it  rests  its  case  and 
the  defense  makes  a  similar  declaration.  This  rest- 
ing- shuts  off  the  prosecution  from  presenting-  any 
further  testimony,  but  not  the  defense,  which  may 
offer  additional  testimony  at  any  time  before  the  sen- 
tence. But  if  the  defense  introduces  new  witnesses 
the  prosecution  is  thereby  entitled  to  rebut  them  by 

372 


INTERIyOCUTORY    SENTENCE.  373 

other  witnesses.  This  declaration  by  both  sides 
that  they  rest  their  case  is  the  conchisio  in  causa, 
in  as  far  as  there  can  be  one  in  a  criminal  case.  It 
need  not  be  made  in  any  set  form.  After  the  vicar 
g^eneral,  or  other  judg-e,  has  declared  the  process 
closed  {absoluto  proccssu)  he  makes  a  summary  of 
the  case,  stating  its  orig"in  and  the  various  stag-es  of 
the  process,  g'iving-  also  the  conclusions  which  follow 
leofally  on  the  one  hand  from  the  testimony  of  the 
prosecution  and  on  the  other  hand  from  that  of  the 
defense.  If  the  vicar  gfeneral  is  also  to  g-ive  sen- 
tence, he  nevertheless  at  this  stage  makes  a  sum- 
mary of  the  case.  If  an  auditor  has  acted,  this 
summary  concludes  his  work,  and  he  turns  over  to 
the  ordinary  judg^e  the  whole  case  tog'ether  with  the 
summary  he  makes  of  it. 

411.  Following"  is  a  form  for  recording*  a  demand 
for  long'er  time  for  defense: 

"On  the  —  day  of  —  A.  D.  —  the  Rev.  N.  advo- 
cate for  the  accused  Rev.  N.  appeared  before  the  V. 
Rev.  Vicar  g"eneral  and  asked  a  long^er  term  than  the 
seven  days  grranted  for  defense,  which  he  says  is  too 
short  for  several  reasons  g^iven  by  him.  The  V. 
Rev.  Vicar  gfeneral  held  his  request  to  be  reasonable 
and  therefore,  having*  accepted  it  si  et  in  quantum^ 
ordered  the  term  prorogfued  for  another  seven  days, 
counting-  from  the  expiration  of  the  first  term.  Done 
this  —  day  of  — . 

N.  N.  Vicar  General. 
N.  Actuary." 

But  if  the  request  is  refused  then  say: 

"On  the  —  day  of  — A.  D.  — ,  the  Rev.  N.  &c  (as 
above  to  the  V.  Rev.)  The  V.  Rev.  Vicar  g-eneral 
considering"  that  the  reasons  alleg^ed  were  not  suffi- 


374  LEGAL    FORMULARY. 

cient  and  that  the  request  was  made  simply  to  pro- 
long' the  trial,  denied  the  request  and  said  that  if  the 
defense  is  not  made  within  the  time  allowed,  further 
proceeding's  will  be  had  without  paying"  attention  to 
the  defense.     Done  &c. 

N.  Vicar  General. 
N.  Actuary." 

412.  If  the  accused  wishes  to  appeal  or  except 
ag'ainst  such  a  denial  (for  he  can  except)  the  acts 
may  thus  be  written: 

"To  which  the  aforesaid  advocate  (or  accused)  re- 
plied that  the  reasons  advanced  by  him  are  leg'iti- 
mate  and  by  no  means  invented  to  delay  the  trial; 
that  therefore  he  appeals  to  those  to  whom  by  law 
he  should  appeal  from  the  foreg'oing*  sentence  and  de- 
cree; and  he  protests  the  nullity  of  the  acts  if  fur- 
ther proceeding's  be  had,  and  he  asks  that  the  orig'inal 
acts  be  forwarded  to  the  hig^her  court  urg'ently  and 
most  urg'ently.  Done  this  —  day  of  —  A.  D.  — .  I 
N.  N.,  advocate,  protest  and  appeal  as  above. 

I,  N.  N.  Vicar  General. 
I,  N.  Actuary." 

If  the  judg'e  then  g-rants  the  request  rather  than 
waste  time  in  the  appeal,  the  facts  may  be  thus 
recorded: 

"But  the  V.  Rev.  Vicar  g-eneral  seeing*  the  perse- 
verance of  the  aforesaid  advocate  in  appealing",  and 
considering-  that  althoug-h  the  appeal  is  frivolous  and 
the  alleged  reasons  are  not  legfitimate,  but  that 
nevertheless  the  trial  would  be  more  prolong'ed  in 
discussing-  them  than  in  g-ranting-  the  demanded  pro- 
rog'ation,  prudently  receding-  from  his  decree  of  re- 
fusal already  made,  g-ranted  another  term  of  seven 
days  from  the  expiration  of  the  first  term.  Done 
this  —  day  of  —  A.  D.  — .  N.  Vicar  General. 

N.  Actuary." 


CROSS    EXAMINATION.  375 

The  above  forms  may  be  used  with  proper  chang^es 
for  recording-  any  interlocutory  sentence,  appeal 
therefrom,  and  receding*  from  the  decree  first  en- 
tered. If  the  judg-e  refuses  to  recede  and  orders  the 
trial  to  proceed,  it  would  be  very  dang-erous  for  the 
defendant  to  resist  and  try  to  g^et  a  hearing"  on  appeal. 

413.  When  the  accused  or  his  advocate  has  re- 
ceived a  copy  of  the  offensive  process  he  will  formu- 
late a  cross  examination  of  the  witnesses  for  the 
prosecution,  before  he  presents  his  own  witnesses. 
By  leg-alizing-  the  testimony  already  taken  he  did  not 
forfeit  the  rig-hts  of  cross  examination  and  exception. 
No  exact  form  can  be  g"iven  here  for  such  cross  ex- 
amination; but  it  should  be  based  on  the  examina- 
tion in  chief  and  tend  as  much  as  possible  to  w^eaken 
such  examination.  The  judg^e  ma}^  reject  questions 
which  are  irrelevant  and  purely  defamatory.  Still 
the  fullest  chance  should  be  g^iven  the  defendant  to 
defend  himself.     The  acts  may  read  thus: 

"On  the  —  day  of  —  A.  D. — ,  in  the  curia  before 
the  V.  Rev.  Vicar  g^eneral,  appeared  Rev.  N.,  advo- 
cate for  the  accused  Rev.  N.,  and  in  the  name  of  his 
client  asked  a  recall  of  the  witnesses  —  (mention 
them)  for  the  prosecution  and  a  re-examination  on 
points  which  he  mentioned;  and  at  the  same  time  he 
presented  a  series  of  interrog^atories,  which  the 
V.  Rev.  Vicar  g'eneral  accepted,  si  et  in  quantum, 
and  which  on  his  order  I  placed  in  the  acts  marked 
n.  — .      In  testimony  whereof,  &c. 

N.  Advocate. 

N.  Vicar  General. 

N.  Actuary." 

414.  The  followingr  form  may  be  used  for  present- 
ing- the  questions  to  the  judg-e; 


376  LEGAIy    FORMULARY. 

"Questions  which  the  Rev.  N.,  advocate  for  the 
accused  Rev.  N.,  presents  to  the  V.  Rev.  Vicar  g-en- 
eral  and  asks  that  the  respective  witnesses  be  exam- 
ined thereon:  1^  Witness  N.  (^ive  questions  for  his 
cross  examination);  2'^  Witness  M.  (give  questions 
for  his  cross  examination,  and  in  a  similar  way  the 
other  witnesses.)  Which  questions,  I,  the  under- 
signed advocate,  present  to  the  V.  Rev.  Judge  and 
ask  that  they  be  put.  "N.  Advocate. 

"The  above  questions  being  duly  considered  by 
the  V.  Rev.  Vicar  general  he  ordered  question  — 
and  question  —  dropped,  because  irrelevant. 
Wherefore  on  these  questions  he  does  not  intend  to 
re-examine  the  witnesses,  but  on  the  others  he  de- 
creed that  the  witnesses  should  be  recalled  and 
cross  examined.     Done  &c.  N.  Vicar  General, 

N.  Actuary." 

415.  "Consequently  the  V.  Rev.  Vicar  general 
decreed  to  cite  the  accused  Rev.  N.  and  his  advocate 
Rev.  N.  to  hear  the  testimony  of  the  witnesses  to  be 
recalled.  Wherefore  he  ordered  issued  a  citation  to 
the  aforesaid  accused  and  his  advocate  to  be  served 
by  N.  N.  personally  or  in  their  usual  places  of  resi- 
dence which  citation  is  as  follows:  'At  the  order  of 
the  V.  Rev.  Vicar  general  Rev.  N.-  th.e  accused  and 
Rev.  N.  his  advocate  are  cited  to  appear  before  the 
same  V.  Rev.  Vicar  general  in  the  usual  judgment 
hall  on  —  at  —  o'clock;  for  the  purpose  of  seeing  the 
affidavits  of  the  witnesses  and  their  cross  examina- 
tion. And  this  citation  the  same  V.  Rev.  Vicar 
general  orders  served  personally  or  in  the  place  of 
their  usual  residence.  Given  in  the  chancery  on  — 
day  of  —  A.  D. — .  I,  N.V  icar  general.  N.  Actu- 
ary.' Which  order  after  the  aforesaid  N.  N.  had 
fulfilled,  he  returned  to  me  and  reported  that  he  had 
served  the  citation  personally,  leaving  a  copy.  Done 
&c.     I,  N.  N.  messenger  affirm  as  above. 

N.  Actuary." 


CROSS-EXAMINATION.  377 

In  a  similar  way  the  witnesses  are  cited  for  the 
same  time  and  place. 

416.  "On  the  —  day  of  —  A.  D.  — ,  Rev.  N.,  the 
accused,  and  Rev.  N.,  his  advocate,  appearing- before 
the  V.  Rev.  Vicar  g'eneral,  and  likewise  the  witnesses 
previously  examined  in  the  cause  of  the  said  Rev. 
N.  also  appearing-,  Mr.  N.,  one  of  the  witnesses, 
was  called  and  having-  taken  the  oath  to  tell  the 
truth,  after  his  previously  g-iven  testimony  was  read 
to  him  word  for  word  and  he  wished  to  make  no 
chang-es  in  it,  but  on  the  contrary  re-affirmed  it,  he 
was  cross-questioned  on  the  points  proposed  b}-  the 
advocate  of  the  accused,  namely:  1°  Asked?  He 
replied.  (Then  g-ive  questions  and  answers.) 
Which  being-  done  on  the  order  of  the  V.  Rev.  Vicar 
g-eneral  I  read  his  deposition  to  the  said  witness; 
and  he  being-  asked  whether  he  wished  to  make  any 
chang-es  in  it  and  replying*  that  he  did  not,  he  was 
ordered  to  subscribe  his  deposition.  Done  this  — 
day  of  —  A.   D.  — .     I,  N.  witness  testify  as  above. 

N.  Vicar  General.     N.  Actuary." 

The  same  method  is  followed  in  reg-ard  to  each 
witness.  The  previous  examination  is  read  to  him 
before  the  cross-examination  is  made.  A  copy  of 
this  testimony  may  be  thus  g-iven: 

'*On  the  —  day  of  —  a.  d.  — ,  when  the  cross-ex- 
amination of  the  witnesses  was  completed,  the  V. 
Rev.  Vicar  g-eneral  decreed  that  a  copy  of  it,  -prout 
de  jure,  should  be  g-iven  the  accused. 

N.  Vicar  General. 
N.  Actuarv." 

"For  the  execution  of  the  aforesaid  decree  on  the 
same  day  Rev.  N.,  advocate  for  the  accused,  w^as 
called  and  an  authentic  cop}-  of  the  aforesaid  cross- 
examination  was  given  to  him,  for  which  he  g-ave 
thanks.     In  testimony  whereof,  &c.     Done  &c. 

I,  N.  Actuary." 
49 


378  LEGAL    FORMULARY. 

417.  After  the  defendant  has  cross-examined  the 
witnesses  of  the  prosecution,  he  presents  the  points 
of  his  defense  to  the  judg^e  and  asks  that  his  docu- 
ments be  received  and  his  witnesses  examined. 
Following-  is  a  suggestion  for  presenting-  points  of 
defense  though  the  articles  should  be  drawn  in  ac- 
cordance with  the  testimony  the  defendant  expects 
to  produce: 

*'Date .     Comes  now  Rev.  N.,  the  advocate  of 

the  accused  Rev  N.,  and  in  court  before  the  V.  Rev. 
Vicar  general  presents  the  underwritten  points  of 
•defense  in  favor  of  his  client,  and  he  insists  and  de- 
mands that  concerning  them  all  without  exception 
all  the  witnesses  whom  he  will  later  produce  shall 
be  examined,  protesting  and  appealing  against  any 
refusal  with  however  all  due  honor  and  reverence. 
The  points  are:  1^  that  the  place  mentioned  as  fre- 
quented by  the  accused  is  really  not  a  saloon  but  a 
restaurant  where  the  accused  sometimes  takes  meals; 
2^  that  what  was  said  to  be  drunkenness  on  the 
streets  was  only  the  effect  of  a  sickness  to  which  the 
defendant  is  subject;  3°  that  on  the  Sunday  men- 
tioned, June  12,  1898,  and  also  on  the  day  before,  the 
defendant  was  absent  from  home,  being  suddenly 
called  to  his  sick  brother  and  not  being  able  to  reach 
home;  4°  that  there  is  no  ill-fame  about  the  defend- 
ant's alleged  eating  before  mass,  and  the  two  wit- 
nesses of  the  prosecution  are  known  enemies  of  the 
defendant.  The  witnesses  to  sustain  these  points 
of  defense  he  will  present  one  after  the  other  at  the 
proper  time,  whom  at  present  for  just  reasons  he 
does  not  mention;  but  at  the  citation  of  the  V.  Rev. 
Vicar  general  he  will  name. 

I,  N.  N.  Advocate  for  Defendant." 

"The  above  points  of  defense  were  presented 
and  were  accepted  by  the  V.  Rev.  Vicar  gen- 
eral,   6^/   et   in   quantum,,   and    saving    the  right    to 


DEFENSE   OF    ACCUSED.  379 

modify  them,  and  at  his  order  were  by  me  placed  in 
the  acts.     Done  this  —  day  of  —  A.  D.  — . 

N.  N.  Actuary." 

418.  '  'On  the  —  day  of  —  A.  D.  —  Rev.  N. ,  the  ad- 
vocate of  Rev.  N.,  the  accused,  was  called  before 
the  V.  Rev.  Vicar  g^eneral  and  was  told  to  produce 
documents  and  witnesses  to  sustain  the  points  of  de- 
fense offered  by  him.  And  the  aforesaid  advocate 
produced  Mr.  N.  to  be  examined  on  the  first  and 
fourth  points.  Immediately  therefore  the  aforesaid 
Mr.  N.  was  called  and  the  oath  to  tell  the  truth  be- 
ing" administered  was  taken  by  him  on  the  hoh^  g*os- 
pels.  Then  he  being-  asked  regarding-  the  first  point 
of  the  defense,  namely  (as  in  n.  417  above)  replied  — . 
Asked  regarding-  the  fourth  point  of  defense,  namely 
(as  in  n.  417  abovej  he  replied  — ." 

"Which  being-  done  and  his  deposition  being  read 
to  the  witness  &c,  (add  usual  conclusion  for  testi- 
mony of  a  witness.) 

"Immediately  thereafter  the  aforesaid  advocate 
produced  Dr.  N.  to  be  examined  on  the  second  and 
fourth  points  of  the  defense,  &c  (as  for  the  preced- 
ing witness.") 

419.  Thus  the  defense  by  witnesses  will  endeavor 
to  establish  its  points,  and  documents  may  also  be 
produced.  It  is  evident  that  the  defense  should 
make  the  strongest  showing  possible.  ,  If  the  judge 
excludes  necessary  testimony  or  refuses  to  hear  wit- 
nesses or  to  entertain  valid  exceptions  against  wit- 
nesses, or  otherwise  clearly  shows  himself  prejudiced 
against  the  defendant,  an  appeal  may  be  taken  at 
once  and  a  challenge  of  the  judge  be  included. 
However  the  attention  of  the  judge  must  first  be 
called  to  the  matter  and  correction  asked. 

Following  is  a  form  for  appealing  and  challenging: 


380  LEGAL    FORMULARY. 

"Date .     Comes  now  the  Rev.  N.,  advocate  of 

the  accused  Rev.  N.,  before  the  V.  Rev.  Vicar  gen- 
eral, and  protesting  all  due  honor  and  reverence  for 
the  said  V.  Rev.  Vicar  g-eneral,  in  the  name  of  his 
client  says  that  the  person  of  the  V.  Rev.  Vicar 
gfeneral  is  suspected  by  him,  because  he  showed  ill- 
will  ag"ainst  the  defendant  in  rejecting*  as  frivolous 
his  exception  against  a  witness  because  of  enmity, 
and  in  ordering  the  actuary  to  record  the  testimony 
of  said  witness.  Therefore  he  appeals  ad  quern  et 
qicos  de ju7'e  from  the  aforesaid  V.  Rev.  Vicar  gen- 
eral because  of  the  grievance  already  sustained;  and 
combining  a  challenge  with  the  appeal,  for  the  afore- 
said cause  he  recuses  the  said  vicar  general  as  a 
judge  suspected  by  him;  and  he  asks  and  wishes  and 
insists  that  he  shall  no  longer  in  any  way  interfere 
in  this  cause  which  is  being  tried  against  the  de- 
fendant; and  he  protests  the  nullity  of  the  process, 
if  notwithstanding  the  present  appeal  and  recusa- 
tion, he  should  proceed  further;  nunc  pro  tunc  ap- 
pealing and  asking  urgently  and  most  urgently  that 
the  original  acts  be  sent  up  to  the  higher  court. 
Done  this  —  day  of  —  A.  D.  — .  I,  N.N.  advocate, 
appeal  and  recuse  as  above. 

N.  N.  Actuary." 

420.  "Consequently  the  V.  Rev.  Vicar  general 
ordered  the  aforesaid  appeal  to  be  placed  in  the  acts, 
which  I  inserted,   and  he  issued   a  decree  as  follows: 

"Although  the  aforesaid  appeal,  made  by  Rev.  N. 
advocate  for  Rev.  N.  defendant,  is  altogether  frivo- 
lous and  without  foundation,  nevertheless  because  of 
reverence  for  those  to  whom  the  appeal  is  taken,  we 
yield  to  it,  si  et  in  quantmn,  and  decree  that  the  acts 
in  the  case  be  forwarded.  Given  in  the  chancer}^ 
this  —  day  of  —  A.  D.  — . 

N.  Vicar  General. 
N.  Actuary." 

421.  When  the  defendant  has  seen  the  names  of 


EXCEPTING   TO   WITNESSES.  381 

the  witnesses,  he  may  notice  some  to  whom  he  ex- 
cepts. He  should  at  once  file  his  exceptions  in  writ- 
ing.    Following"  is  a  form: 

"Date .     Comes  now  before  the  V.  Rev.  Vicar 

ofeneral,  Rev.  N.  ag'ainst  w^hom  a  criminal  process  is 
beinor  instituted,  and  he  says  that  he  excepts  against 
N.  N.  a  witness  produced  ag'ainst  him,  because  the 
said  N.  N.  is  a  g^reat  personal  enemy  (or  is  g'uilty  of 
the  crime  of  — ,  or  is  infamous  in  law  or  fact)  which 
precludes  his  testimony  being-  received.  Therefore 
he  proposes  the  following-  points  of  exception  with 
this  intention  only  that  the  testimony  of  the  afore- 
said N.  N.  may  be  rejected  and  held  as'  null. 
Wherefore  he  does  not  intend  that  the  aforesaid  wit- 
ness shall  be  punished  either  publicly  or  privately. 
The  points  of  exception  are:  1^  That  the  said  N. 
N.  has  been  convicted  of  calumny  ag-ainst  Rev.  X. 
2^  That  in  the  same  libellous  article  the  present  de- 
fendant and  exceptor  was  also  abused.  3^,  &c. 
The  witnesses  to  sustain  these  points  will  be  pro- 
duced at  the  order  of  the  court.  Dated  &c.  I,  N.  N. 
except  and  accuse  as  above." 

422.  The  bill  of  exceptions  will  be  filed  by  the 
actuary,  and  the  judg-e  will  order  witnesses  exam- 
ined. He  will  then  pass  interlocutor}^  sentence 
on  whether  the  witness  is  to  be  rejected  or  not,  for 
this  exception  really  necessitates  a  trial  within  a 
trial.  Should  the  judg-e  allow  the  testimony  of  the 
witness  to  stand  in  spite  of  the  proved  exception, 
the  defendant  may  appeal  to  the  hig-her  court  from 
this  interlocutorv  sentence,  for  it  inflicts  a  g-rievous 
damag-e  w^hich  cannot  be  remedied  in  the  final  sen- 
tence; since  in  fact  the  testimony  in  question  may 
actually  determine  the  final  sentence  ag'ainst  the  de- 
fendant.    It   is  true  the  council  of  Trent  (Sess.   2j, 


382  IvEGAIv   FORMULARY. 

c.  /,  de  ref.)  chang'ed  the  law  and  limited  appeals,  so 
that  in  criminal  cases  no  appeal  can  be  taken  from 
an  interlocutory  sentence.  But  it  did  not  absolutely 
forbid  such  appeals;  it  forbade  them,  "unless  the 
g'rievance  is  such  which  cannot  be  repaired  by  the 
final  sentence,  or  unless  no  appeal  can  be  taken  from 
the  final  sentence  itself;  in  which  cases  the  provisions 
of  the  sacred  and  ancient  canons  remain  in  full  force. ' ' 
Hence  in  the  very  form  of  appeal  from  an  interlocu- 
tory sentence  it  must  now  appear,  not  only  that 
there  is  a  serious  g'rievance,  but  one  which  cannot 
be  repaired  by  the  definitive  sentence.  This  defini- 
tive sentence  means  the  one  in  the  present  trial,  not 
on  appeal  to  a  higher  court.  The  g'rievances  which 
cannot  be  repaired  by  the  final  sentence  are  nowhere 
specified  in  law.  Hence  a  careful  showing  should 
be  made  in  the  form  of  appeal  showing*  the  irrepar- 
able damage. 

423.  Following  is  a  form  for  appealing  against  an 
interlocutory  sentence  which  in  a  criminal  case  in- 
flicts a  damage  irreparable  by  the  final  sentence: 

"Date  .     Comes  now  before  the  V.  Rev.  Vicar 

general,  the  Rev.  N.  accused  as  above,  and  says  that 
he  is  aggrieved  by  the  said  V.  Rev.  Vicar  general 
in  a  decree  by  which  he  rejected  as  frivolous  the  said 
defendant's  exception  against  the  witnesses  N.  and 
N.  (or  express  the  grievance  whatever  it  is.)  Fur- 
ther he  shows  that  this  grievance  is  such  that  it  can- 
not be  remedied  by  the  final  sentence;  for  since  the 
aforesaid  witnesses  have  testified  that  the  alleged 
crime  was  perpetrated  by  the  said  defendant,  if 
their  testimony  is  admitted,  nothing  but  conviction 
can  be  expected  by  the  said  defendant.  Hence  be- 
cause the  said  defendant  sustains  that  he  has  suf- 


INTERLOCUTORY     APPEAL.  383 

ficiently  proved  that  the  aforesaid  witnesses  are  per- 
sonal enemies  of  him,  and  are  infamous  and  disquali- 
fied; therefore  with  all  due  submission,  not  with  the 
intention  of  protracting*  the  trial,  but  of  freeing-  him- 
self from  a  g^rievance,  the  said  Rev.  N.  appeals  from 
the  said  decree  or  interlocutory  sentence,  and  he 
wishes  and  insists  that  it  be  rescinded;  otherwise 
he  appeals  to  the  metropolitan  curia  and  the  Holy 
See;  and  he  asks  that  the  orig"inal  acts  be  sent  up, 
urg*ently  and  must  urg-ently.  Dated  this  —  day  of  — 
A.  D.  — -.     I,  N.  appeal  as  above.'.' 

"The  above  appeal  was  presented  and  on  the  order 
of  the  V.  Rev.  Vicar  general  was  placed  in  the  acts, 
and  receive  only  according*  to  law,  this  —  day  of  — 
A.  D.  — .  N.  Actuary." 

424.  The  judge  may  re-investig-ate  and  rescind  his 
decree  and  the  orig-inal  case  will  then  proceed,  after 
proper  entry  is  made'in  the  records.  But  if  the  ap- 
peal is  to  be  rejected,  following*  is  a  form: 

"Consequent  thereto  the  V.  Rev.  Vicar  g-eneral, 
having-  attentively  considered  the  cause  of  the  appeal 
produced  by  the  said  defendant,  Rev.  N.,  he  found 
that  it  is  not  sustained  in  law  or  in  fact;  therefore 
he  rejected  it  as  frivolous  and  of  no  force  and  de- 
creed, notwithstanding"  it,  to  proceed  further. 
Which  decree  when  it  was  made  known  to  the  said 
defendant.  Rev.  N.,  he  taking-  an  exception,  acqui- 
esced in  it.  {Or)  he  ag'ain  appealed  and  ag-ain  asked 
that  the  acts  be  forwarded,  urg-ently  and  most 
urg-ently.     Done  this  —  day  of  —  A.  D.  — . 

N.  Actuary." 

425.  After  the  defense  has  entered  all  its  proofs, 
such  as  documents  and  witnesses,  the  fiscal  procu- 
rator may  reply  and  rebut  them.  To  this  rebuttal, 
the  defendant  in  turn  will  make  rejoinder.  If  nec- 
essary  an  adjournment  may  be  asked  and  must  be 


384  LEGAL    FORMULARY. 

granted  for  this  purpose,  which  term  is  called  ad 
diccndinn  contra  firoducta.  The  entry  in  the  acts 
may  be  as  follows: 

"On  the  —  day  of  —  A.  D.  — ,  the  fiscal  procura- 
tor presented  certain  replies  to  rebut  the  defense 
made  by  Rev.  N.,  the  defendant;  which  replies  are 
as  follows:  (Insert  them.)  The  foreg'oing'  replies 
on  the  order  of  the  V.  Rev.  Vicar  general  were  com- 
municated to  the  advocate  of  the  defendant.  In 
testimony  whereof  &c.  I,  N.  Actuary. 

426.  The  rejoinder  of  the  defendant  may  be  thus 
entered: 

"On  the  —  day  of  —  A.  D.  — ,  the  Rev.  N.,  advo- 
cate for  the  defendant,  Rev.  N.,  presented  a  re- 
joinder against  the  rebuttal  adduced  by  the  fiscal 
procurator,  which  rejoinder  is  as  follows.  (Insert 
it.)     In  testimony  whereof  &c. 

I,  N.  Actuary." 

If  new  proofs  should  be  found  for  the  prosecution 
they  may  be  offered  before  the  judg"e  declares  the 
process  closed,  or  makes  his  summary.  The  defense 
may  offer  new  proofs  also  later.  The  same  method 
is  pursued  with  them  as  with  those  proofs  originally 
offered.  They  must  be  communicated  to  the  opposite 
party. 


CHAPTER  XIII. 

FORMS   FOR    DEFINITIVE   SENTENCE. 

427.  When  both  sides  have  finished  entering  testi- 
mony, the  vicar  g'eneral  or  auditor  will  make  a  sum- 
mary of  the  case.  This  practicall}^  closes  the  case 
for  the  prosecution,  even  though  no  declaration  is 
made  by  the  judo*e,  closing  the  case.  If  an  auditor 
was  compiling  the  process  he  will  now  turn  it  over 
to  the  ordinary  judge.  The  judge  will  then  issue  a 
citation  to  the  accused  and  the  fiscal  procurator 
ordering'  them  to  make  and  present  a  final  defense  or 
argument,  ad  alleg'andinn  in  jure  et  in  facto.  In 
doing  this  the  defendant  must  have  an  advocate,  or 
the  judge  is  bound  to  appoint  one  for  the  purpose. 
(C/.  Ciun  viag-nop.  Art.  ji.)  This  defense,  or  argu- 
ment on  the  law  and  facts  of  the  case,  must  now  be 
in  writing.  (/.  c.  j2.)  The  whole  process,  as  well  as 
the  summary  made  by  the  auditor  or  judge,  ma}^  be 
seen  by  the  defendant's  advocate  in  the  chancery 
ofiSce.  He  may  also  copy  it  at  his  own  cost.  The 
advocate  for  the  defendant  on  or  before  the  ap- 
pointed day  files  his  written  argument  on  the  law 
and  facts.  Then  the  fiscal  procurator  files  his  writ- 
ten argument,  which  must  be  communicated  to  the 
defendant's  advocate.  This  advocate  makes  a  final 
argument,  and  the  judge  takes  all  the  papers  to  pre- 
pare his  sentence.  When  he  is  ready,  he  cites  both 
the  defendant  or  his  advocate  and  the  fiscal  procur- 

50  385 


386  LEGAL   FORMULARY. 

ator  to  hear  the  definitive  sentence.  One  simple 
citation  is  sufficient,  if  it  is  properly  served,  for  the 
trial  is  summary.  If  the  parties  after  citation  do 
not  appear  and  assig'n  no  reason,  sentence  may  be 
passed  in  their  absence.  The  sentence  must  be  read 
by  the  judg^e,  seated,  and  for  validity  must  be  in 
writing". 

428.  Following"  is  a  form  for  citing"  the  defendant 
to  hear  sentence.  A  similar  form  mav  be  used  to 
cite  the  fiscal  procurator: 

"Thereafter  the  V.  Rev.  Vicar  g"eneral  wishing"  to 
proceed  to  a  final  sentence  summoned  N.  N.  a  public 
court  messeng"er  and  committed  to  him  a  citation  of 
the  following-  tenor:  The  Rev.  N.  defendant  and 
Rev.  N.,  his  advocate,  and  also  the  diocesan  fiscal 
procurator  N.  N.  are  cited  to  appear  before  the  V. 
Rev.  Vicar  g-eneral  at  — o'clock,  on  the  —  day  of  — 
A.  D.  — ,  in  the  hall  of  -judg^ment  in  the  episcopal 
residence,  to  hear  the  definitive  sentence  then  to  be 
pronounced  in  the  case  tried  ag"ainst  the  said  de- 
fendant. And  the  aforesaid  V.  Rev.  Vicar  g"eneral 
orders  this  citation  served  personally  on  the  afore- 
said persons  or  in  their  place  of  usual  residence. 
Given  at  —  on  the  —  day  of  —  A.  D.  — . 

N.  Vicar  General, 
N.  Actuary." 

"Therefore  the  aforesaid  N.  N.  messeng-er,  having" 
fiulfilled  his  commission,  returned  to  me  as  actuary 
and  reported  that  he  had  served  the  aforesaid  cita- 
tion, as  was  ordered,  personally  on  the  aforesaid 
Rev.  N.  and  Rev.  N.  Done  this  —  day  of  —  A.  D. — . 
I,  N.  messeng"er,  affirm  as  above. 

I,  N.  Actuary." 

429.  Following"  is  a  form  for  beg"inning"  a  definitive 
sentence  in    a  criminal  case.     The  words   "warned 


DEFINITIVE    SENTENCE.  387 

and  g"iven  the  canonical  precept"  may  be  omitted  if 
the  trial  was  beg'un  without  warning*.     {See  )i.  jj^..) 

"In  the  name  of  God,  amen.  We,  N.  N.  ordinary 
(or  deleg*ated)  judg^e  seated  in  our  tribunal,  having- 
seen  and  carefully  considered  all  and  sing"ular  the 
matters  in  the  cause  and  causes  tried  before  us  for 
our  auditor,  N.  N.)  concerning*  the  (here  mention  the 
crime  concerning-  which  the  trial  was  had)  in  reg^ard 
to  which  crime  the  Rev.  N.  was  defamed  (warned 
and  g-iven  the  canonical  precept);  having-  seen  and 
maturely  weig-hed  the  depositions  of  the  witnesses 
and  other  proofs  ag-ainst  the  said  Rev.  N.  about  the 
aforesaid  crime;  having"  seen  and  seriousl}^ considered 
the  citation,  examination  and  defense  of  the  accused, 
and  the  said  defendant  having-  been  sufficiently  heard 
on  all  his  points  of  defense;  having-  seen  all  thing's 
that  should  be  seen  and  considered  all  that  should 
be  considered  in  the  case,  having-  onl}^  God,  the  foun- 
tain of  justice  before  our  eyes,  and  invoking  the 
sacred  name  of  Christ,  b}^  this  our  definitive  sen- 
tence, which  we  g-ive  in  this  writing-,  we  say,  de- 
clare, pronounce  and  g-ive  sentence  that  — ." 

430.  Form  for  an  absolving-  sentence  when  no 
crime  was  committed: 

"In  the  name  (as  above  in  n.  429  to )   we  g-ive 

sentence,  that  the  aforesaid  Rev.  N.  has  not  at  all 
committed  the  crime  with  which  he  was  charg-ed; 
and  therefore  we  absolve  him  as  innocent  and  dismiss 
him  from  further  trial.  Thus  and  ever\'  other  best 
way.  This  sentence  was  g-iven,  read  and  published 
in  —  on  the  —  day  of  —  A.  D.  — .  Thus  we  have 
pronounced,  seated  in  court. 

N.  N.  Vicar  General. 
N.  Actuary. 


' » 


431.   Form  when  the  defendant  has  not  been  shown 
g-uilty: 


388  LEGAL    FORMULARY. 

"In  the  name  (as  in  n.  429  to )  we  g^ive  sen- 
tence that  the  Rev.  N.  was  not  found  gfuilty  nor 
punishable  by  law;  and  therefore  we  absolve  him 
from  further  trial  and  from  any  and  every  further 
process;  and  we  impose  perpetual  silence  on  this 
case.  Thus  and  every  other  best  way.  This  sen- 
tence was  o;-iven,  read  and  published  on  the  —  day 
of  —  A.  D.  —  in  (place.)  Thus  we  have  pronounced 
seated  in  court.                                N.  Vicar  General. 

N.  Actuary." 

432.  Form  for  a  sentence  condemning-  the  accused 
who  was  convicted  by  witnesses: 

"In  the  name  (&c  as  in  n.  419  to  give  sentence) 
give  sentence  that  the  Rev.  N.,  the  accused,  was  and 
is  throug-h  witnesses  fully  convicted  of  (mention  the 
crime  with  its  circumstances.)  Wherefore  we  con- 
demn him  to  the  punishment  imposed  by  the  sacred 
canons  in  lib.  —  tit.  —  c.  —  (or  our  diocesan  stat- 
utes, or  threatened  by  our  canonical  precept)  namely, 
(express  exactly  the  punishment  to  be  underg*one.) 
Thus  and  every  other  best  way.  This  sentence  was 
g-iven,  read  and  published  this  —  day  of  —  A.  D.  — 
in  — .  Thus  we  have  pronounced,  seated  in  the 
tribunal.  N.  Vicar  General. 

,  N.  Actuary." 

If  the  accused  has  confessed  the  crime  that  fact 
may  be  inserted  thus:  "Give  sentence  that  the  Rev. 
N.  has  committed  the  crime  of  (express  crime)  of 
which  he  is  convicted  by  witnesses  and  as  he  himself 
by  his  own  mouth  and  willing-l}^  has  confessed. 
Wherefore  &c." 

433.  At  times  the  canonical  punishment  is  to  be 
increased  because  of  previous  conviction  or  other  cir- 
stances;  at  times  also  it  should  be  diminished 
because  of  alleviating-  circumstances.  Following-  is 
a  form  for  such  cases: 


def'initive:  sentence.  389 

"In  the  name  &c  (as  in  n.  429)  we  say,  declare, 
pronounce  and  give  sentence  that  the  Rev.  N.  is  con- 
victed of  (or  is  convicted  and  has  confessed)  the  crime 
for  which  he  was  tried,  namely  (mention  crime.) 
Therefore  he  is  subject  to  the  punishment  decreed 
by  the  sacred  canons  (or  diocesan  statutes,  or  our 
precept)  against  such  delinquents.  But  because 
the  said  Rev.  N.  is  accustomed  to  offend  by  this  kind 
of  crime  of  which  he  was  previousl}^  also  convicted 
(or  state  other  reason  for  increasing  the  punishment) 
therefore  we  declare  the  said  punishment  is  to  be  in- 
creased. Wherefore  we  condemn  him  to  (give  ex- 
actly the  punishment  he  is  to  undergo.) 

But  because  (here  appears  the  circumstance  why 
punishment  should  be  decreased)  therefore  we  de- 
clare the  severity  of  the  punishment  is  to  be  some- 
what relaxed  in  his  case.  Wherefore  we  condemn 
him  &c.  Thus  and  every  other  best  way.  This 
sentence  was  given,  read  and  published  this  —  day 
of  —  A.  D.  —  in  — .  Thus  we  have  pronounced 
seated  in  the  tribunal. 

N.  Vicar  General. 
N.  Actuary." 

434.  The  actuary  must  record  the  sentence  in  the 
acts,  which  may  be  done  as  follows: 

"The  accused  Rev.  N.  together  with  his  advocate 
Rev.  N.  (or  the  advocate  alone)  and  also  the  fiscal 
procurator  appearing  in  court,  the  V.  Rev.  Vicar 
general  (or  the  bishop)  seated  at  the  tribunal  passed 
a  definitive  sentence  absolving  the  said  accused  from 
all  guilt  under  the  charges  {o7')  declaring  that  the 

accused  is  guilty  of  the  crime  of  . and  inflicting 

the  canonical  punishment;  which  written  sentence 
when  he  had  pronounced  vocally,  he  committed  writ- 
ten to  me,  the  actuary,  ordering  me  to  place  it  in  the 
acts.     In  fulfillment  of  which  command,  I  placed  the 

said  sentence  in  the  acts,  and  it  beg'ins and  ends 

and  is  of  the  following  tenor:     (insert  it.)     To 


390  LEGAtv   FORMUIvARY. 

abundantly  prove  the  authenticity  of  the  aforesaid 
sentence,  N.  and  N.  asked  for  the  purpose,  have 
subscribed  as  witnesses.  Done  at  —  this  —  day  of 
—  A.  D.  — .  I,  N.  Vicar  General.  I,.  N.  was  a  wit- 
ness.    I,  N.  was  a  witness. 

I,  N.  Actuary." 

435.  It  is  not  necessary  for  the  defendant  to  be 
present  when  sentence  is  passed  thoug^h  he  should  be 
cited.  The  "Cum  mag-nopere, "  Art.  34,  makes  no 
mention  of  the  defendant,  but  says  his  advocate  and 
the  fiscal  procurator  are  to  be  present  when  the  sen- 
tence is  pronounced.  The  sentence  is  then  made 
known  officially  to  the  accused,  either  by  court  mes- 
senger, or  special  messeng*er,  or  by  registered  mail 
(C/.  ArL  14,  ''C?i7n  ^nagnojiere.'')  An  exact  ac- 
count should  be  kept  of  the  day  and  hour  when  the 
accused  receives  the  notification  of  the  sentence,  for 
he  is  allowed  ten  days  and  only  ten  from  this  time 
in  which  to  file  his  appeal  with  the  judg"e  a  quo. 
When  sent  by  mail  such  a  record  can  hardly  be  got- 
ten. The  actuary  should  make  the  following-  entry 
in  the  acts. 

436.  ''Thereafter  the  V.  Rev.  Vicar  gfeneral 
ordered  that  the  aforesaid  sentence  should  be  com- 
municated to  the  accused,  and  calling*  N.  N.  a  mes- 
senger, he  committed  to  him  and  ordered  him  to 
serve  an  authentic  copy  of  the  said  sentence  on  Rev. 
N.  personally  or  in  his  usual  place  of  residence. 
Given  &c.  N.  Vicar  General. 

N.  Actuary." 

"Therefore  the  aforesaid  messenger,  N.  N.  having 
fulfilled  his  commission,  returned  and  reported  to 
me,  as  actuary,  that  on  the  —  day  of  —  A.  D.  — ,  at 
10  o'clock  a.  m.  he  had  served  the  aforesaid  sentence. 


SERVICE   OF   SENTENCE.  391 

as  ordered  on  Rev.  N.  personally.     Done  this  — day 
of  —  A.  D.  — .     I,  N.  messenger  affirm  as  above. 

I,  N.  Actuary." 

The  "Cum  mag-nopere"  Art.  33,  requires  the 
judg"e  to  state  in  his  definitive  sentence  of  condemna- 
tion the  canonical  sanction  or  punishment  attached 
to  the  crime  committed.  In  some  cases  the  law  it- 
self specifically  states  the  punishment  to  be  inflicted 
for  the  crime;  in  others  the  law  states  that  the  crime 
is  punishable,  but  does  not  specify  the  punishment, 
leaving-  the  ecclesiastical  judg-e  free  to  inflict  what- 
ever punishment  he  may  deem  just.  Hence  Art.  3 
leaves  the  inflicting-  of  punishment  to  the  conscien- 
tious discretion  of  the  ordinary.  In  such  a  matter 
it  is  better  to  err  by  leniency  than  by.  severity. 


CHAPTER  XIV.    . 

PROCESS   KX   NOTORIO. 

437.  Although  notorious  crimes  may  be  punished 
without  following^  the  regular  process  of  law, 
{Cf.  n.  ^j^  above,)  still  it  is  required,  1°  that  the  crime 
be  really  notorious,  i.  e.,  committed  in  a  public  place 
and  in  presence  of  a  larg-e  number  of  people,  2^  that  by 
two  witnesses  the  notoriety  itself  be  proved,  3^  that 
there  also  be  certainty  of  the  malice  of  the  delinquent, 
4°  that  the  delinquent  be  cited  to  show  cause  why  sen- 
tence should  not  be  passed  on  him.  A  crime  seen  by 
several  o^c\dA^m  ffag-ranti  may  be  considered  notor- 
ious and  needs  no  reg'ular  process  if  the  delinquent 
is  brought  before  the  judge  immediately.  If  the 
crime  is  committed  flagrantly  in  presence  of  the 
judge  himself  seated  in  court,  sentence  may  at  once 
be  passed  in  a  decree  and  in  it  mention  be  made  of 
the  flagrancy  of  the  crime.  But-  if  the  crime  was 
committed  in  the  presence  of  other  witnesses  these 
witnesses  must  testify  to  the  flagrancy;  and  if  the 
accused  denies  the  crime  he  must  be  given  an  advo- 
cate and  opportunity  to  defend  himself .  {Cf.  Clams 
in  praxi  criin.  q.  8;  Reiffenstiiel,  I.  5,  t.  /,  n.  268.) 
Hence  the  "Cum  mag'nopere"  had  better  be  used  in 
flagrant  cases,  except  contempt  of  court.  If  the 
crime  is  committed  before  a  judge  out  of  court,  the 
regular  process  must  be  followed.     {Ibidem.) 

438.  Following  is  a  form  for  the  acts  in  notorious 
cases: 

392 


PROCESS    EX    NOT(3KIO.  393 

"In  the  name  of  the  Lord,  amen.  This  is  a  crim- 
inal process  by  way  of  notoriety  a^'ainst  Rev.  N. 
Since  it  has  come  to  the  knowledgfe  of  the  V.  Rev. 
Vicar  g-eneral  that  the  said  Rev.  N.  in  the  public 
street  before  a  larg^e  number  of  persons  wantonly 
and  maliciously  struck  the  Rev.  X.  in  such  a  way 
that  the  crime  committed  by  him  can  in  no  way  be 
concealed  or  denied;  therefore  in  order  to  fulfill  his 
duty  the  said  V.  Rev.  Vicar  treneral  decreed  to  pro- 
ceed by  way  of  notoriety  ag^ainst  the  said  de  nqucnt 
Rev.  N.  and  to  take  information  concerning-  the 
notoriet}';  wherefore  he  called  me  to  his  room  where 
he  erected  his  tribunal  and  having*  deputed  me,  al- 
ready a  sworn  notary,  as  the  actuary  for  the  case, 
he  decreed  to  proceed  by  citing-  N.  N.  and  N.  N.  as 
witnesses,  and  he  ordered  the  following  citation 
served  on  the  said  witnesses  personally  or  in  their 
usual  place  of  residence  by  the  court  messenger  N. 
(Then  follow  the  citation,  and  return  by  messeng^er 
in  usual  form.)     Done  at  —  this  —  day  of  —  A.  D.  — . 

N.  Vicar  General. 
N.  Actuary." 

439.  "On  the  —  day  of  —  a.  d.  — ,  in  — ,  N.  N., 
a  witness  summoned  and  appearing  before  the 
V.  Rev.  Vicar  general,  and  having  taken  the  oath  to 
speak  the  truth,  deposed  and  said: 

Q.     What  is   your    name?     A.  .     (Then    the 

general  questions.) 

Q.  Do  you  know  of  an}^  unusual  occurrence  or 
scandal  having  occurred  in  your  town?     A.  . 

Q.     How,  when  and  where  did  it  occur?     A. . 

Q.     How  do  3^ou  know?     A.     1  was  present. 

Q.     Who  else  was  present?     A, 


Q.      Is  this  well  known  and  notorious?     A. . 

Q.     What  do  3^ou  understand  by  notorious?     A.  — . 
"Which   being    done    &c."     (Close    as    usual    for 
examination.) 

In  the  same   way  one  or  two  more   witnesses  are 

51 


394  .  LEGAL    FORMULARY. 

examiaed  on  the  notoriety  of  the  crime.  Then  the 
judgfe  declares  the  notoriety  to  exist  and  orders  the 
delinquent  cited: 

''Consequently  the  V.  Rev.  Vicar  g-eneral  having 
maturely  considered  the  depositions  of  the  witnesses, 
pronounced  that  notoriety  of  the  alleg-ed  crime  ex- 
isted; and  he  decreed  to  proceed  further  according- 
to  law.  Wherefore  he  ordered  the  court  messeng^er, 
N.  to  serve  personally  on  Rev.  N.  or  in  his  place  of 
usual  residence  a  citation  to  appear  and  show  cause 
why  he  should  not  be  punished  for  the  said  crime, 
which  citation  is  as  follows:  (Knter  citation  and 
return  by  messengfer  in  usual  forms.)  Done  &c. 
Date  &c.     Signed." 

440.  "On  the  — day  of  —  A.  D.  — ,  in  —  the  afore- 
said Rev.  N.  was  called  and  appeared  before  the 
said  V.  Rev.  Vicar  g*eneral,  the  said  Rev.  N.  being- 
the  person  who,  as  is  found  in  the  acts,  notoriously 
struck  Rev.  X.  When,  therefore,  the  V.  Rev.  Vicar 
general  had  admonished  him  he  absolved  him  from 
the  excommunication  with  reincidence  to  the  effect 
only  of  allowing"  him  standing-  in  court,  and  then 
havingf  spoken  to  him  of  the  crime  he  had  notoriously 
committed,  the  delinquent  was  asked  why  he  should 
not  be  condemned  to  the   ordinary  punishment.     He 

replied .     Then  his  deposition  having-  been  read 

to  him  he  was  ordered  to  sig-n  it.  I,  N.  testify  as 
above.  N.  Vicar  General. 

N.  Actuary." 

441.  The  sentence  can  be  passed  immediately  as 
follows: 

"This  is  a  definitive  sentence  in  a  criminal  case 
passed  by  way  of  notoriety  against  Rev.  N. 

"In  the  name  of  God,  amen.  We,  N.  N.  ordinary  (or 
deleg-ated)  judge  seated  in  our  tribunal,  having-  seen 
and  maturely  considered  all  and  singular  the  matters 
in  the  cause  of  the  Rev.  N.  who  is  charg-ed  with  note- 


SENTENCE   IN   NOTORIETY.  395 

riously  having-  struck  Rev.  X;  having-  seen  and 
weio-hed  the  depositions  of  the  witnesses  to  the  noto- 
riety of  the  said  crime;  having-  seen  the  citation  of 
the  accused  and  his  deposition  and  reasons  why  he 
should  not  be  sentenced;  having-  seen  what  should 
be  seen  and  considered  what  should  be  considered  in 
this  case,  having-  only  God,  the  fountain  of  justice 
before  our  eyes,  and  invoking-  the  holy  name  of 
Christ,  by  this  our  definitive  sentence  which  we  g-ive 
in  writing-,  we  say,  declare,  pronounce  and  g"ive  sen- 
tence that,  since  it  is  notoriously  certain  that  Rev.  N. 
struck  Rev.  X.,  therefore  he  can  and  oug-ht  to  be 
punished  by  way  of  notoriety  and  without  the  sol- 
emnity of  law.  Wherefore  we  condemn  him  to  the 
punishment  inflicted  by  law  —  (mention  it)  and 
therefore  he  is  (excommunicated  or  mention  exact 
punishment.)  Thus  in  this  and  every  other  best 
way.  This  sentence  was  passed,  read  and  published, 
on  the  —  day  of  —  A.  d.  —  in  — .  Thus  we  pro- 
nounced seated  at  our  tribunal. 

N.  Vicar  General. 
N.  Actuary." 

The  sentence  is  recorded  as  in  n.  434  and  is  made 
known  to  the  condemned  as  in  n.  436  above.  No  ap- 
peal is  allowed  in  notorious  cases. 


CHAPTER   XV.      • 

FORMS   FOR    APPEALS. 

442.  If  an  appeal  is  taken  in  court  as  soon  as  the 
sentence  is  pronounced,  no  set  form  is  required. 
The  appellant  will  simply  say:  "I  appeal  to  the 
hig-her  court  and  ask  that  the  acts  be  sent  up." 
The  actuary  will  then  make  this  entry: 

"When  the  aforesaid  sentence  was  read  and  pub- 
lished to  the  said  accused,  Rev.  N.,  he  appealed  and 
asked  that  the  acts  be  sent  up;  to  which  the  V.  Rev. 
Vicar  g^eneral  replied  that  he  would  do  what  he 
judg-es  the  law  requires.  Done  at  —  this  —  day  of 
—  A.  D.  — .  I,  N.  appeal  and  ask  that  the  acts  be 
sent  to  the  court  of  appeal. 

I,  N.  Actuary." 

But  if  the  defendant  does  not  immediately  appeal, 
he  can  within  the  ten  days  file  a  notice  of  appeal  in 
the  following*  form: 

' 'On  the  —  day  of  —  A.  D.  —  in  —  comes  the  Rev.  N. 
with  the  witness  undersig^ned,  (witnesses  are  not 
strictly  necessarjO  and  before  the  V.  Rev.  Vicar 
g-eneral  says  he  has  been  g-rievously  injured  by  the 
sentence  passed  ag^ainst  him  on  the  —  day  of  —  A. 
D.  — ;  therefore  he  appeals  from  it  and  asks  that  the 
orig^inal  acts  be  sent  to  the  higfher  court,  earnestly, 
and  most  earnestly.  In  testimony  whereof,  I,  N.  ap- 
peal and  ask  as  above.     N.  Witness.     N.  Witness." 

"The  above  appeal  was  presented  and  admitted  si 
et  in  quanliwi,  and  inserted  in  the  acts  on  the  order 
of  the  V.    Rev.  Vicar  g-eneral,  who  replied   that  he 

3% 


FORM   FOR    APPEALING.  397 

would  do  what  is  required  by  law.     Done  at  —  this 
—  day  of  — A.  D.  — .  I,  N.  Actuary." 

443.  If  for  some  reason  such  as  sickness  a  person 
cannot  appeal  before  the  judg^e  a  quo  he  nia}^  appeal 
within  the  ten  days  before  several  honest  men  in 
public  and  in  writing";  these  men  should  sig"n  the 
appeal  as  witnesses.     Following"  is  a  form: 

"I  appear  to-day,  the  —  day  of  —  A.  D.  —  person- 
ally, before  you  N.  and  N.  and  being"  defendant  in  the 
case  of  —  (state  the  case)  and  feeling"  that  I  have 
been  seriously  injured  by  the  sentence  passed  ag"ainst 
me  in  the  aforesaid  cause  by  the  V.  Rev.  Vicar  g"en- 
eral  on  the  —  day  of  —  A.  D.  —  or  other  time  as 
mentioned  therein;  and  because  I  have  not  committed 
the  crime  and  undefended  and  unheard  and  illeg"all3^ 
have  been  condemned,  and  for  other-  reasons  which 
will  be  g"iven  in  proper  time  and  place;  and  because 
further,  on  account  of  sickness  (or  state  other  rea- 
son) I  am  not  able  to  appeal  before  the  said  Vicar  g"en- 
eral,  I  appeal  before  you  as  honest  men  to  the  Holy 
See  (or  the  metropolitan  curia)  and  with  this  my 
protestation  I  ask  that  you  give  a  certification  to  this 
my  appeal.  In  this  and  ever}"  other  best  wa3\  I,  N. 
appeal  and  ask  as  above." 

"On  the  same  day  and  in  the  same  place  as  above 
we  the  undersig-ned  citizens  of  N —  certif}^  unto  whom 
it  may  concern  and  on  request  we  testify  that  N.  N. 
on  the  aforesaid  day  and  in  the  same  place  person- 
ally appeared  before  us  and  alleg"ed  the  aforesaid 
reasons  for  not  appealing"  before  the  judg"e  a  quo,  and 
he  asserted  that  he  was  ag"g"rieved,  that  he  appealed 
and  asked  as  in  the  writing*  signed  by  his  own  hand 
more  fully  appears;  and  this  he  did  before  also  the 
undersig"ned  witnesses.  In  testimony  whereof  we 
g"ive  these  testimonial  letters.  I,  N.  a  witness. 
I,  N.  a  witness." 


398  LEGAL   FORMULARY. 

444.  The  judg-e  a  quo  by  article  38  of  the  "Cum 
mag"nopere"  is  obliged  in  case  of  appeal  to  send 
forthwith  the  orig-inal  acts  of  the  case  to  the  higher 
court.  Formerly  he  gave  the  appellant  only  a  copy. 
The  original  of  the  process,  the  summary  of  it,  the 
defense  and  the  sentence  must  be  sent  up.  The 
judge  a  quo  may  accompany  the  acts  with  a  letter, 
taking  the  place  of  the  a^ostoli  no  longer  in  use. 
Following  is  a  form  for  such  letter,  especially  in  an 
appeal  from  a  decree  or  interlocutory  sentence: 

"When  Rev.  N.  on  the  —  day  of  —  A.  D.  — ,  ap- 
pealed before  us  from  a  sentence  (or  decree)  passed 
by  us  on  —  as  appears  in  the  acts,  and  he  also  gave 
a  reason  for  the  appeal  as  is  contained  in  the  acts; 
we  rejected  his  appeal  and  the  reason  for  it  as  of  no 
value  and  again  we  reject  them.  But  because  a  sec- 
ond time  he  appealed  against  our  rejection  and  asked 
that  the  acts  be  sent  up,  we  herewith  transmit  them 
and  refer  and  forward  the  cause  concerning  this 
point  to  —  (mention  the  higher  tribunal)  and  succes- 
sively to  others  as  by  law  it  may  devolve.  But  we 
do  not  intend  thereby  to  dismiss  the  aforesaid  ac- 
cused from  our  jurisdiction,  but  pronounce  that  we 
wish  his  case  prosecuted  and  determined  according 
to  law.     Given  at  —  this  —  day  of  —  A.  D.  — . 

N.  Vicar  General. 
N.  Actuary.'' 

445.  Following  is  a  form  in  sending  up  the  acts 
after  an  appeal  from  a  definitive  sentence: 

"Since  we  passed  a  definitive  sentence  in  the  case 
of  Rev.  N.  who  was  defamed  (accused)  of  crime,  and 
since  the  said  Rev.  N.  has  appealed  from  our  sen- 
tence to  the  metropolitan  curia  (or  other  court)  and 
successively  to  the  Holy  See;  we,  as  is  right,  de- 
ferring to  such  appeal,  dismiss  the  said  accused  and 


FORM    FOR    APPEALING.  399 

his  cause  with  the  orig"inal  acts  and  send  them  up  to 
the  said  metropolitan  curia  (or  other  court.)  Given 
at  —  on  the  —  day  of  —  A.  D.  — . 

N.  Vicar  General  in  the  Diocese  of  N. 

N.  Actuary." 

The  above  forms  may  be  used  for  appealing"  also 
in  civil  cases;  but  the  civil  matter  on  trial  should  be 
distinctly  specified  instead  of  the  crime.  As  soon  as 
the  appeal  is  made  known  to  the  judge  a  quo,  the 
sentence  is  suspended  until  reviewed  by  the  higher 
court.  The  definitive  sentence  should  not  be  exe- 
cuted before  the  limit  for  appealing-  has  expired. 
When,  however,  an  appeal  is  taken  against  an  extra- 
judicial sentence  or  grievance,  the  decree  is  sus- 
pended only  when  the  hig"her  court  has  accepted  the 
appeal.  In  such  a  case  the  judge  a  qtio  is  also 
obliged  to  send  up  the  original  acts  and  may  be  in- 
hibited from  proceeding  further.  {^Ad  niilitantis^ 
n,  4S.) 

436.  Following  is  a  form  for  appealing-  from  an 
extrajudicial  grievance: 

*'0n  the  —  day  of  —  A.  d.  —  in  — ,  comes  the 
Rev.  X.  and  before  the  V.  Rev.  Vicar  general  N.  N. 
(Most  Rev.  Bishop)  says  that  he  has  been  and  is 
grievously  injured  by  a  certain  decree  (or  order) 
issued  to  and  concerning-  him  on  the  —  day  of  — 
A.  D.  — ,  and  received  on  — ,  which  decree  is  to  the 
effect  that  (here  state  exactly  the  grievance,  for  in- 
stance,) the  Rev.  X.  must  pay  $300,  for  building  an 
asylum,  within  thirty  days  under  pain  of  suspension, 
and  he  further  shows  that  he  is  not  obliged  in  law 
or  justice  to  pay  such  an  amount  and  is  unable  to 
pay  it,  and  therefore  he  appeals  to  the  metropolitan 
curia  from  this  grievance  extrajudicial!}^  inflicted, 
and  he  asks  that  the  original  records  in  the  matter 


400  I^EGAL    FORMULARY. 

be  sent  up  to  the  hig-her  court,  earnestly  and  most 
earnestly.  In  testimony  whereof.  I,  N.  appeal  and 
ask  as  above.     N.  witness.     N.  witness." 

"The  above  appeal  was  presented  and  admitted 
si  ct  in  qitantum,  and  made  of  record  on  the  order  of 
the  V.  Rev.  Vicar  g-eneral,  who  replied  that  he 
would  do  what  is  required  by  law.  Done  at  — 
this  —  day  of  —  A.  D.  — . 

N.  Vicar  General. 

N.  Actuary." 

An  extrajudicial  appeal  is  tried  before  the  judg-e 
of  appeal  as  in  a  court  of  first  instance.  In  ^ivingf 
notice  to  the  judg-e  of  appeal  a  copy  of  the  appeal  as 
lodofed  in  the  lower  court  should  be  offered.  It  is 
safer  to  appear  personally  or  by  advocate  before  the 
hig-her  court  when  first  the  appeal  is  introduced. 
An  inhibition  should  be  asked  ag-ainst  the  lower 
court  or  the  bishop  taking-  further  action. 


CHAPTER  XVI. 

THE  ACTS  BEFORE  JUDGE  OF  APPEAL. 

447.  When  the  notice  of  appeal  has  reached  the 
jud^e  of  the  hig-her  court  he  will  at  once  enjoin  on 
the  appellant  that  within  thirty  days  he  must  select 
an  advocate  who  is  subject  to  approval  of  the  higher 
court.  If  the  appellant  allows  this  peremptory  term 
of  thirty  days  to  elapse  without  notifying"  the  court 
of  his  selection  or  reg'arding-  an  impediment  why  he 
cannot,  the  judg^e  of  appeal  will  declare  the  appeal 
extinct.  {''Cu))i  magiiopere''  art.  jg.  ^o.)  It  is 
now  certain  that  in  a  criminal  case  the  appellate 
judge  sets  the  time  for  introducing  the  appeal,  and 
that  an  appeal  is  not  extinguished  except  by  his 
declaratory  sentence  to  that  effect.  The  judge  of 
the  lower  court  can  no  long^er  make  this  declaration. 
On  the  other  hand  it  is  certain  that  the  judge  of  the 
lower  court  after  an  appeal  has  been  taken  cannot 
proceed  to  execute  his  sentence  until  he  has  obtained 
a  decree  declaring-  the  appeal  extinct.  The  judge 
of  appeal  may  issue  inhibitions  to  the  lower  court, 
and  at  the  request  of  the  appellant  should  do  so  if 
there  is  suspicion  that  an  attempt  will  be  made  to 
execute  the  sentence.  At  the  request  of  the  appel- 
lant the  judge  of  appeal  before  all  else  will  revoke 
attentates,  or  things  done  against  the  appellant 
within  the  ten  days  allowed  for  a  suspensive  appeal 
or   after   notice  of  appeal  has  been   given.     In   the 

court  of  appeal  the  same  method  will  be  foUow^ed  as 
52  401 


402  LKGAIv   FORMULARY. 

in  the  lower  court.  (/.  c.  art.  41 .)  The  fiscal  pro- 
curator of  the  hig-her  court  will  represent  the  lower 
court,  unless  another  to  act  with  him  is  requested  by 
the  appellee  and  approved  by  the  judg-e  of  appeal. 
What  has  been  proved  in  the  lower  court  need  not  be 
proved  ag-ain;  but  new  testimony  may  be  introduced, 
which  is  done  as  in  the  lower  court. 

448.  When  an  appeal  from  an  interlocutory  sen- 
tence is  introduced  the  acts  may  be  thus  recorded  in 
the  court  of  appeal: 

"In  the  name  of  the  Lord,  amen.  Since  the  Rev. 
N.  of  the  diocese  of  N.  (or  N.  the  advocate  of  Rev. 
N.)  appeared  before  the  V.  Rev.  N.  N.,  Vicar  gen- 
eral of  the  arch-diocese  of  N.,  and  showed  that  he 
has  appealed  from  an  interlocutory  sentence  of  the 
V.  Rev.  N.  N.,  vicar  g-eneral  of  the  same  diocese, 
which  sentence  was  concerning-  (state  sentence;)  and 
since  the  said  appellant.  Rev.  N.,  insisted  that  he 
should  be  admitted  before  the  said  V.  Rev.  N.  N., 
vicar  g-eneral  of  this  arch-diocese,  to  prove  his  cause 
and  the  reasons  advanced  by  him  to  sustain  his  ap- 
peal; the  said  V.  Rev.  Vicar  g-eneral,  having-  sum- 
moned me,  a  public  actuary  of  this  curia,  decided  to 
proceed  according-  to  law.  Done  at  —  this  —  day  &c. 
I,  N.  Vicar  g-eneral  of  the  Arch-diocese  of  N. 

N.  Actuary." 

"Consequently  the  same  V.  Rev.  Vicar  g-eneral, 
having-  seen  the  reasons  for  the  appeal  produced  by 
the  said  appellant.  Rev.  N.,  for  his  advocate,)  pro- 
nounced that  they  are  leg-itimate  in  law;  and  to  see 
whether  they  are  founded  on  fact,  at  the  order  of  the 
same  vicar  g-eneral,  the  said  appellant.  Rev.  N.,  (or 
his  advocate)  was  called  before  the  said  V.  Rev. 
Vicar  g-eneral,  and  he  said  he  was  ready  to  prove  the 
cause  expressed  in  his  bill  of  appeal  and  he  men- 
tioned  N.    and   N.  as    witnesses  to  prove  his  first 


ACTS   OF    APPEAL.  403 

article.  (The  actuary  will  record  witnesses  and 
documents  offered  by  the  appellant  to  sustain  his 
appeal.)  All  of  which  were  received  and  admitted 
by  the  V.  Rev.  Vicar  general  of  this  arch-diocese,  si 
et  in  qiianttun  and  the  said  vicar  g'eneral  decided  to 
proceed  further  according*  to  law.  Done  at  —  this 
—  day  of  —  A.  D.  — . 

I,  N.  Vicar  General  of  the  Arch-diocese  of  N. 

N.  Actuary." 

449.  If  the  judge  of  appeal  thinks  the  reasons  for 
appeal  are  not  such  for  which  the  law  allows  an  ap- 
peal from  an  interlocutory  sentence,  instead  of  say- 
ing: "He  pronounced  that  they  are  legitimate  in 
law,  as  in  the  above  number,  the  record  will  be: 

"He  pronounced  the  reasons  for  the  appeal  are  not 
legitimate  in  law;  consequently  he  decreed  to  remit 
the  said  appellant,  Rev.  N.,  to  his  ordinary  judgx, 
and  he  ordered  that  these  original  acts  of  the  present 
decree  and  of  the  process  be  sent  to  the  aforesaid 
ordinary  judge.  Done  at  —  this  —  day  of  —  A.  D. — . 
N.  Vicar  General  of  Arch-diocese  of  N. 

N.  Actuary." 

450.  When  the  reasons  for  the  appeal  are  found 
legitimate,  the  appellant  must  also  show  that  the}^ 
exist  in  fact.  Taking  the  case  of  appeal  against  a 
judge  allowing  enemies  to  be  witnesses,  mentioned 
above  in  n.  419,  the  reason  for  appeal  is  sufficient  in 
law;  but  the  appellant  must  show  that  they  are 
actual  enemies.     The  acts  will  be  thus  written: 

"On  the  —  day  of  —  A.  D.  — ,  at  — ,  when  the 
said  appellant,  Rev.  N.  appeared  before  the  V.  Rev. 
Vicar  general  of  this  arch-diocese,  the  latter  decided 
to  proceed  to  the  examination  of  witnesses  and  docu- 
ments produced  by  the  said  appellant  to  show  that 
his  cause  subsisted  in  fact.     Wherefore  X.,  a  witness 


404  LEGAL    FORMULARY. 

assig"ned  to  prove  the  tirst  article  was  called,    who 
being"  duly  sworn,  deposed  and  said:     Q.  — .     A.  — . " 

The  forms  for  examining*  witnesses  &c.  are  the 
same  as  given  in  the  preceding-  chapters.  The 
process  is  substantially  the  same  as  in  the  lower 
court.  When  the  parties  have  rested  their  case,  they 
are  cited  to  hear  sentence. 

451.  Following-  is  a  form  for  sentence  in  an  appeal 
from  an  interlocutory  decree  or  sentence: 

*'In  the  name  of  the  Lord,  amen.  We,  vicar  g-en- 
eral  and  ordinary  judg-e  of  the  arch-diocese  of  N., 
having"  seen  the  appeal  interposed  by  Rev.  N.  an 
accused  person,  concerning"  an  interlocutory  sentence 
passed  by  the  V.  Rev.  N.  vicar  g^eneral  and  ordinary 
judg"e  of  the  diocese  of  N.  on  the  —  day  of  —  A.  d. 
— ;  having"  seen  the  reasons  advanced  by  the  said 
Rev.  N.  to  sustain  his  cause;  having"  seen  and 
maturely  considered  the  depositions  of  the  witnesses 
and  other  proofs  offered  by  the  appellant,  by  this 
our  sentence  we  pronounce,  declare  and  say,  that  in- 
terlocutory sentence  was  ill  passed  by  the  aforesaid 
judg"e  and  the  appeal  is  well  taken.  Wherefore  we 
call  the  aforesaid  case  from  the  V.  Rev.  N.  vicar 
g"eneral  of  the  diocese  of  N.  to  our  metropolitan 
tribunal.     Given  at  —  this  —  day  of —  A.  D.  — . 

N.  Vicar  General  of  Arch-diocese  of  N. 

N.  Actuary." 

452.  But  if  it  is  found  that  proof  of  the  fact  is  not 
sufficient  and  the  sentence  of  the  lower  court  is  to  be 
sustained  then  the  sentence  will  read: 

"In  the  name  (&c.  to  declare  and  say)  declare  and 
say  that  interlocutory  sentence  was  well  passed  by 
the  aforesaid  judg"e,  and  an  appeal  was  ill  taken  by  the 
said  appellant,  Rev.  N.  Wherefore  we  decree  and 
pronounce  that  notwithstanding"  the  aforesaid  appeal, 


ADMITTING    APPEAL.  405 

the  said  judge  should  proceed  with  the  case  accord- 
ing- to  law.     Given  (&c.  as  above.)" 

In  case  the  lower  judge  is  sustained  all  the  acts  of 
the  appeal  should  be  sent  down  to  him  with  the  sen- 
tence of  the  appellate  court,  and  they  are  all  to  be 
inserted  in  the  acts  of  the  case  in  the  lower  court. 
But  if  the  sentence  is  in  favor  of  the  appellant,  the 
court  of  appeal  will  hear  the  case  from  the  point  of 
appeal  and  give  final  sentence  as  a  court  of  first 
instance. 

453.  When  an  appeal  is  taken  from  a  definitive 
sentence  the  acts  of  the  appellate  court  will  read: 

"In  the  name  of  the  Lord,  amen.  Since  the  Rev. 
N.  of  the  diocese  of  N.  as  appears  from  the  notice  of 
appeal  filed  by  him  before  the  V.  Rev.  Vicar  general 
N.  of  the  arch-diocese  of  N.  has  appealed  against  a 
definitive  sentence  passed  on  him  in  a  criminal  case 
by  the  V.  Rev.  N.  vicar  general  of  N.;  and  since  he 
presents  the  Rev.  X.,  as  his  advocate  and  asks  that 
he  be  approved  by  the  court  of  appeal  with  the  in- 
tention of  prosecuting  the  said  appeal;  since,  more- 
ever,  the  original  processual  acts  of  the  curia  of  N. 
including  the  process,  its  summary,  the  defense  and 
the  definitive  sentence  have  been  transmitted  to  and 
are  now  before  the  said  V.  Rev.  N.,  vicar  general  of 
this  arch-diocese;  therefore  the  said  V.  Rev.  N.,  vicar 
general  of  this  arch-diocese,  called  on  me  a  sworn 
notary  to  be  actuary  for  this  case  and  decreed  to 
proceed  according  to  law  in  the  case  of  the  said 
appeal.  Done  at  —  on  the  —  day  of  —  A.  D.  — . 
N.  Vicar  General  of  the  Arch-diocese  of  N. 

N.  Actuary." 

"Consequently  the  aforesaid  Rev.  X.  was  ap- 
proved and  the  aforesaid  appellant  Rev.  N.  was 
ordered  by  the  said  V.  Rev.  Vicar  general  to  present 
what  articles  he  had,  if  any,  to  show  the  injustice  of 


406  LEGAL    FORMULARY. 

the    aforesaid  sentence    from    which    he    appealed. 
Thereupon  he  presented  some    points  in    a  writing- 

which  begins and  ends  ,  and   which  on  the 

order  of  the  V.  Rev.  Vicar  general  was  placed  in  the 

acts   numbered .     Done   at  —   this  —  day  of  — 

A.  D.  — .  N.  Metropolitan  Vicar  General. 

N.  Actuary." 

Thereafter  the  new  testimony  is  introduced  and 
the  trial  conducted  as  in  the  lower  court,  the  metro- 
politan fiscal,  or  other  as  above,  n.  447,  representing 
the  lower  court.  If,  however,  the  appellant  has  no 
new  testimony  to  present  then  the  acts  will  read: 

"Consequently  (&c.  to  Thereupon.)  But  the  ap- 
pellant replied  that  he  had  nothing  to  add  to  what  is 
contained  in  the  acts,  from  which  the  injustice  of  the 
sentence  will  sufficiently  appear.     Done  &c." 

In  this  case  the  judg^e  will  examine  the  acts  and 
when  ready  will  cite  the  parties  for  sentence. 

454.  It  should  be  noted  that  the  judge  of  appeal 
becomes  the  judge  of  the  principal  cause  and  must 
pass  definitive  sentence.  Unlike  the  state  courts  he 
does  not  order  a  new  trial  by  the  lower  court,  but 
himself  becomes  the  judg-e  and  gives  sentence.  Pol- 
lowing*  is  a  form  for  definitive  sentence  on  appeal: 

"Case  of  Diocese  of  N.  vs.  Rev.  N.  Sentence  in 
the  second  instance. 

In  the  name  of  the  Lord,  amen.  We,  N.  N., 
vicar  general  of  the  arch-diocese  of  N.,  seated 
in  our  tribunal,  having  seen  and  attentively 
considered  all  and  singular  the  things  done  in  the 
cause  and  causes  tried  before  the  V.  Rev.  N.,  Vicar 
general  of  the  diocese  of  N.,  against  the  Rev.  N. 
who  was  defamed  (or  accused)  concerning-  the  crime 
of  (express  crime  or  charges  exactly;)  having-  like- 
wise seen  all  things  produced  in  law  and  fact  in  favor 


FINAL   APPEAL   SENTENCE.  407 

of  the  said  Rev.  N.;  having-  seen  also  the  definitive 
sentence  passed  against  him  by  the  said  V.  Rev. 
Vicar  general  and  ordinary  judge  of  the  said  diocese; 
having  finally  seen  the  appeal  interposed  before  this 
metropolitan  court,  and  having  considered  the  rea- 
sons, laws  and  proofs  produced  before  us  to  sustain 
the  said  appeal,  and  the  argument  of  the  fiscal  pro- 
curator against  it;  having  seen  what  should  be  seen 
and  maturely  considered  what  should  be  considered 
in  the  matter,  having-  only  God,  the  fountain  of  jus- 
tice, before  our  eyes,  by  this  our  definitive  sentence 
which  we  give  in  writing,  invoking  the  holy  name  of 
Christ,  we  judge,  say,  pronounce  and  declare  that 
the  sentence  of  the  lower  court  was  well  passed  and 
the  appeal  ill  taken.  Wherefore  we  confirm  the 
sentence  alread}^  pronounced  by  the  judge  of  the  dio- 
cese of  N.  viz.,  that  Rev.  N.  is  guilty  &c.  (mention 
crime)  and  therefore  we  condemn  him  to  the  punish- 
ment imposed  (express  punishment  exactly.) 

Thus  and  every  other  best  wa3\  This  sentence  was 
passed,  read  and  published  at  —  this  —  day  of  — 
A.  D.  — .  Thus  we  have  pronounced  seated  in  our 
tribunal. 

N.  Vicar  General  of  the  Arch-diocese  of  N. 

N.  Actuary." 

The  sentence  will  be  entered  in  the  acts  and  served 
on  the  defendant  by  the  hig-her  court  as  in  the  lower 
court.  A  copy  will  be  sent  to  the  judge  from  w^hom 
the  appeal  was  taken. 

455.  If  the  sentence  of  the  lower  court  is  to  be  re- 
versed then  after  "we  iudo-e  —  and  declare"  it  will 
read: 

"That  the  sentence  of  the  lower  court  w^as  ill 
passed  and  the  appeal  well  taken.  Wherefore  w^e 
reverse  (or  modif}^  the  sentence  pronounced  by  the 
ordinary  judge  of  the  diocese  of  N.  and  we  give  sen- 
tence that  the  Rev.  N.   is  not  found  guilty  nor  pun- 


408  LEGAIv   FORMUIvARY. 

ishable  by  law;  and  therefore  we  absolve  him  from 
further  trial,  and  we  impose  perpetual  silence  on  this 
case.  Thus  and  ever}^  other  best  way.  This  sentence 
was  given,  read  and  published  at  —  on  this  — '-  day  of 
—  A.  D.  — .  Thus  we  have  pronounced  seated  in 
our  tribunal. 

N.  Vicar  General  of  Arch-diocese  of  N. 

N.  Actuary." 

456.  When  an  appeal  has  been  deserted,  the  judg-e 
of  appeal,  on  application  by  the  ^'udge  of  the  lower 
court  or  his  representative,  will  issue  a  decree  declar- 
ing the  appeal  extinct.  He  should  uot,  however, 
issue  such  a  decree  of  his  own  motion.  Following  is 
a  form: 

"On  the  —  day  of  —  A.  D.  —  in  — ,  the  Rev.  S., 
fiscal  procurator  of  this  arch-diocese  of  N.  appears 
before  the  V.  Rev.  N.,  vicar  general  of  this  arch- 
diocese and  appellant  judge  in  the  case  of  the  Diocese 
of  N.  vs.  Rev.  N.;  and  the  said  fiscal  procurator  for 
and  in  the  name  of  the  diocesan  curia  of  N.  shows 
that  on  the  —  day  of  —  A.  D.  —  a  notice  of  appeal 
was  filed  by  the  said  Rev.  N.  with  this  metropolitan 
curia  in  the  aforesaid  case,  and  the  said  fiscal  procu- 
rator further  shows  that  the  time  allowed  by  law, 
in  "Cum  magnopere"  art.  40,  for  the  perfecting  of 
the  appeal  is  now  expired,  that  is  thirty  days  from 

,  when  this  metropolitan  curia  ordered  that  the 

appeal  be  perfected  by  the  said  Rev.  N.  appointing 
an  advocate  to  represent  him;  and  the  said  fiscal  pro- 
curator further  shows  that  no  further  action  looking 
to  the  perfecting  of  said  appeal  has  been  taken  by 
the  said  Rev.  N.,  nor  has  any  excuse  been  offered  or 
accepted  by  this  court  asking  for  an  extension  of  the 
peremptory  term,  nor  has  any  such  extension  been 
granted.  Therefore  the  said  fiscal  procurator  for 
and  in  the  name  of  the  diocesan  curia  of  N.  asks  and 
insists  that  a  decree  be  issued  by  this  metropolitan 


EXTINCTION    OF    APPEAL.  409 

curia  declaring  extinct  the  said  appeal  of  the  said 
Rev.  N.,  and  referring-  the  sentence  for  execution 
back  to  the  said  diocesan  curia  of  N.  I,  S.  fiscal 
procurator  ask  as  above.  N.  Actuary." 

"The  above  application  was  presented  and  ad- 
mitted, St  et  in  quantum,  and  made  of  record  on  the 
order  of  the  said  V.  Rev.  Vicar  g-eneral,  who  decided 
to  proceed  according-  to  law.  Done  at  —  this  — 
day  of  —  A.  D.  — . 
N.  Vicar  General,  Arch-dioc.  of  N.     N.  Actuary." 

"Consequently  the  same  V.  Rev.  Vicar  g-eneral, 
having-  carefully  considered  the  above  application  for 
the  extinction  of  the  appeal  of  Rev.  N.,  issued  a  de- 
cree as  follows:  'In  the  name  of  the  Lord,  amen. 
We,  N.  N.,  vicar  g-eneral  of  the  arch-diocese  of  N. 
and  ordinary  judg-e,  having-  seen  the  notice  of  appeal 
interposed  by  the  Rev.  N.,  an  accused  person,  con- 
victed in  the  diocesan  curia  of  N.  of  the  crime  of  — 
and  sentenced  therein  to  (g-ive  punishment);  having- 
considered  attentively  the  decree  of  this  metropolitan 
curia  ordering-  the  said  Rev.  N.  to  perfect  his  appeal 
within  the  thirty  days  allowed  by  law,  w^hich  per- 
emptory term  in  this  case  expired  on  — ;  seeing-, 
moreover,  that  the  said  appeal  was  not  perfected 
within  the  peremptory  term  and  no  excuse  having- 
been  g-iven;  we  therefore  on  the  motion  and  appli- 
cation of  the  Rev.  fiscal  procurator  of  this  metropol- 
itan curia,  for  and  in  the  name  of  the  diocesan  curia 
of  N.,  do  hereby  declare  and  decree  that  the  afore- 
said appeal  of  Rev.  N.  ag-ainst  the  sentence  of  the 
diocesan  curia  of  N.  is  extinct  and  we  remand  him, 
the  said  Rev.  N.,  back  to  the  said  diocesan  curia  for 
the  execution  of  the  definitive  sentence  passed  upon 
him.  Given  at  —  on  this  —  day  of  —  A.  D.  — . 
N.  Vicar  General,  Arch-dioc.  of  N.     N.  Actuary." 

The  orig-iual  acts  of  the  diocesan  curia   will  then 

be  returned  to  it,  tog'ether  with  a  copy  of  the  acts  of 

appeal  and  of  the  above  decree. 
53 


CHAPTER  XVII. 

CIVIL    PROCESS    IN   CHURCH    COURTS. 

457.  Every  process  which  is  not  criminal  is  called 
civil;  therefore  w^henever  action  is  taken  not  for  pub- 
lic punishment,  but  for  any  other  purpose  the  pro- 
cess is  a  civil  one.  Many  points  are  common  to  both 
the  civil  and  criminal  process.  Hence  it  will  be  nec- 
essary only  to  point  out  some  special  features  of  the 
civil  process  and. g^ive  forms  for  them.  But  first  a 
summary  of  the  reg"ular  civil  process  is  g'iven. 

458.  The  reg*ular  civil  process  begins  with  the 
libellus  or  filing-  of  the  bill  by  the  plaintiff.  He  ap- 
pears personally  or  by  his  procurator  before  the 
judge  to  whom  he  presents  the  bill  signed  by  himself 
wherein  he  asks  that  another  give  him  something  or 
that  something'  be  done  for  his  benefit.  This  bill 
must  be  clear,  so  that  the  defendant  may  know  ex- 
actly what  he  has  to  meet.  If  it  is  obscure  the  judge 
ex  officio  is  obliged  to  require  that  it  be  modified. 
The  plaintiff  is  obliged  to  present  his  bill  in  writing 
and  the  judge  should  not  admit  the  case  without  it. 
{Cf.  Lib.  2  Decret.  /.  j,  c.  /.)  The  judge  may  not 
refuse  to  accept  a  proper  bill  of  complaint.  The  bill 
consists  of  three  parts,  the  narrative  of  facts,  the 
basis  or  reason  for  concluding  and  the  conclusion. 
The  narrative  part  should  contain  the  name  of  the 
judge  or  the  official  position  of  him  before  whom  the 
action  is  taken,   the  name  of  the  plaintiff,  the  name 

410 


DRAWING    CIVIL    BILL.  411 

of  the  defendant  and  a  summary  of  the  facts,  show- 
ing" in  a  civil  case  just  what  and  how  much  is  asked. 
In  a  criminal  bill,  such  as  is  filed  by  the  fiscal  pro- 
curator, it  is  also  required  that  the  place  where  and 
the  year  and  month  when  the  crime  was  committed 
be  inserted.      {Cf.  form  i)i  n.  J4.6,  above.) 

It  is  not  necessary  to  insert  the  day  of  the  crime. 
But  in  a  civil  bill  the  place  and  time  as  a  rule  need 
not  be  inserted;  except  in  a  civil  bill  for  slander  or 
libel,  wherein  they  must  be  inserted.  (C/.  Smalz- 
g'rueber^  I.  2,  t.  j,  n.  /.)  If  the  place  and  date  are 
omitted  from  a  criminal  bill  or  a  civil  bill  for  slander, 
the  bill  is  null  and  void  even  without  objection  b}^ 
the  defendant.  i^Cf.  Lex  libellorum  3,  ff.  de  accusa- 
tionibus ;  Doctores  commiDiiter.)  The  kind  of 
action  intended  need  not  be  expressed  in  the  bill 
before  the  church  courts. 

459.  The  conclusion,  or  just  what  is  asked,  must 
of  necessity  be  clearly  expressed  in  a  civil  bill,  for 
the  sentence  must  be  based  on  this  request  and  be 
conformed  to  it.  It  is  customary  to  add  to  the  con- 
clusion in  a  civil  bill  a  saving*  clause  like  the  follow- 
ing: "On  all  these  matters  I  ask  that  law  and  jus- 
tice be  administered  by  every  best  w^ay  and  form 
possible  by  law,  statute  or  custom."  But  such  a 
clause  cannot  make  good  a  bill  null  and  void  in  essen- 
tials, such  as  omitting  to  state  exactly  what  is  re- 
quired or  sued  for  from  the  defendant.  But  if  the 
principal  thing  is  mentioned  such  a  saving  clause 
will  carry  along'  the  accessories.  The  reason  of  the 
claim  must  for  validity  be  stated  in  a  civil  bill. 
Hence  it  is  not  enough  to  state  that  the  plaintiff  sues 
for  a  certain  sum  of  money;  but   further  it  must  be 


412  IvEGAL    FORMULARY. 

stated  wh}^  he  sues.  For  instance,  because  of  a 
promise  to  pay  borrowed  money,  because  of  rent  due 
and  unpaid,  because  of  ownership  of  an  article  claimed 
also  by  defendant.  The  judg-e  is  oblig-ed  ex ,  officio 
to  refuse  a  civil  bill  in  which  the  conclusion  and  rea- 
son for  concluding-  are  not  clearly  expressed.  How- 
ever in  a  criminal  bill,  neither  the  conclusion,  nor 
the  reason  for  it  need  be  expressed.  For  when  a 
crime  has  been  committed,  the  law  itself  proclaims 
the  conclusion  or  punishment  to  be  inflicted. 

460.  A  civil  bill  may  be  amended  in  points  not  sub- 
stantial with  permission  of  the  court  at  any  time  be- 
fore the  sentence,  on  condition  that  the  expenses  of 
the  other  party  caused  by  the  amendment  be  paid 
before  the  amendment  is  allowed.  But  if  the  thing- 
asked  for  or  the  reason  of  asking-  were  chang-ed,  the 
chang-e  would  be  substantial  and  cannot  be  made 
after  the  answer  of  the  defendant  has  been  filed  in 
court,  as  is  commonly  held  to-day.  In  such  case  a 
new  trial  must  be  beg-un.  But  in  any  case,  all  ex- 
penses of  the  other  party  must  first  be  paid.  As 
the  bill  itself  must  necessarily  be  filed  in  writing-,  so 
for  validity  must  all  amendments  be  filed  in  writing-. 
No  one  but  the  plaintiff  himself  or  his  procurator 
can  substantially  chang-e  his  bill.  His  advocate  has 
no  authority  for  such  a  matter.  The  bill  and  all 
substantial  amendments  must  be  sig-ned  by  the 
plaintiff  who  bring-s  the  suit,  not  by  his  advocate. 
{Cf.  Serial 2 grueher,  I.  2,  t.  j,  n.  ij.) 

461.  When  the  bill  of  complaint  is  presented  to 
the  judg-e,  at  the  request  of  the  plaintiff  he  issues  a 
citation  to  the  defendant,  or  if  a  bishop,  then  to  his 
procurator,   to  appear  and  answer  the  bill  within  a 


AMENDING    BILL.  413 

certain  time,  usually  twenty  days  for  appearance 
and  twenty  more  days  for  the  answer.  At  the  same 
time  a  copy  of  the  bill,  to  be  furnished  in  duplicate 
by  the  plaintiff,  is  served  on  the  defendant.  (C/. 
Reijfenstuel  I.  5,  t.  /,  n.  408.)  This  is  the  usual 
practice  to-day. 

The  citation  issued  to  the  defendant  is  to  be  served 
personally  if  possible;  otherwise  in  his  place  of  usual 
residence  and  in  either  case  the  messeng-er  serving  it 
must  certify  to  such  service  in  his  return.  The 
practice  to-day,  especially  in  the  United  States,  is  to 
issue  in  civil  cases  only  one  peremptory  summons  or 
citation  and  in  it  to  warn  the  defendant  that  unless 
he  appears  within  the  specified  time  and  files  his 
answer,  the  bill  of  complaint  will  be  taken  for  con- 
fessed. This  is  the  punishment  of  contumacy  of  the 
defendant.  However  no  declaration  is  made  by  the 
judg-e,  except  on  motion  of  the  plaintiff.  If  after 
declaration  of  default  and  consequent  confession,  the 
defendant  later  appears  and  wishes  to  have  the  de- 
fault set  aside  and  to  contest,  he  must  first  purg-e 
himself  of  contempt  by  g-iving-  a  satisfactory  reason 
for  not  appearing-  and  must  also  pa}^  the  costs  of  the 
other  party  caused  by  his  neg-lect.  The  judg-e  may 
then  allow  him  to  file  his  answer. 

462.  Before  the  defendant  files  his  answer  to  the 
bill,  he  may  file  certain  exceptions,  either  first  of  all 
and  within  twenty  days  contesting-  the  jurisdiction 
of  the  jud^e,  or  showing-  that  the  case  should  not  be 
heard  because  it  is  7'es  judicata,  or  ended  b}^  pre- 
scription, or  for  some  other  reason.  The  defendant 
at  this  stag-e  may  also  ask  that  the  judg-e  demand  of 
the    complainant    a  deposit    as    security    for  costs. 


414  LEGAIv   FORMULARY. 

especiall}^  if  the  plaintiff  cannot  be  reached  after  the 
ecclesiastical  trial  is  concluded.  A  prudent  judg-e 
will  require  a  deposit  or  other  security  for  costs 
especially  in  the  United  States.  Thi's  may  well  be 
said  to  take  the  place  effectually  of  the  jurmnentum 
caluni7iice,  no  long-er  in  use  with  us. 

463.  When  the  appearance  of  the  defendant  has 
been  entered  in  the  court,  he  files  his  answer  in 
duplicate  to  the  bill  of  complaint,  one  copy  for  the 
court  and  one  for  the  plaintiff.  This  answer  may 
be  filed  in  court  at  any  time  within  the  stated  time 
and  the  presence  of  the  other  party  is  not  required. 
This  answer  makes  the  litis  contestatio.  The 
answer  of  the  defendant  should  reply  to  the  bill, 
clause  for  clause,  for  what  is  not  denied  in  the  bill 
is  taken  for  confessed.  Hence  with  us  i\\^fositiones 
are  no  long'er  in  use,  since  they  are  practically  set- 
tled in  the  bill  and  its  answer.  The  points  denied 
in  the  answer  are  the  points  that  must  be  proved  by 
testimony.  Por  this  purpose  a  certain  time  is  set 
for  the  parties  to  present^their  proofs  and  witnesses 
are  cited  and  examined  in  the  presence  of  both 
parties.  If  witnesses  at  a  distant  place  are  to  be 
examined  it  may  be  done  by  a  commissioner,  who 
will  inform  both  parties  of  the  place  and  date  of  the 
examination  in  order  that  they  may  be  present. 

464.  Thereafter  on  the  appointed  day  occurs  the 
publication  of  the  testimony  taken  on  both  sides. 
Then  takes  place  the  rebuttal  testimony,  which  on 
the  other  side  is  met  by  other  testimony,  all  of  which 
is  then  published.  When  all  proofs  are  in  and  the 
parties  declare  that  they  rest  their  case,  the  judg-e 
will  declare  the  case  closed.     This  conchisio  in  cmisa 


ANvSWER    OF     DEFENDANT.  415 

shuts  out  further  testimony  by  either  side  in  a  civil 
case.  The  parties  are  then  cited  to  appear  on  a  cer- 
tain date  with  their  advocates  and  argue  the  case 
before  the  judg^e,  both  orally  and  in  writint^,  on  the 
points  of  law  and  fact.  The  judge  then  takes  the 
case  with  all  papers  under  advisement  and  when  he 
has  prepared  his  sentence  he  orders  the  parties  cited 
for  a  certain  day  to  hear  it.  On  the  appointed  day 
the  judg-e  seated  will  read  his  definitive  sentence, 
which  must  either  condemn  the  defendant  to  do  or 
free  him  from  doing-  what  was  asked  in  the  bill  of 
complaint.  The  judg^e  cannot  go  outside  the  bill, 
and  in  deciding-  must  depend  only  on  the  evidence 
presented.  The  usual  ten  days  is  allowed  after  sen- 
tence has  been  communicated  to  the  parties  before 
its  execution  takes  place.  Within  that  time  notice 
of  appeal  may  be  given  to  the  judg-e  who  g^ave  the 
sentence.  Either  party  may  appeal  in  a  civil  case. 
465.  The  curia  for  a  civil  case  is  the  vicar  g-eneral 
(or  bishop)  as  ordinary  judg-e  and  a  notary  to  write 
the  acts.  Each  party  has  its  advocate.  The  fiscal 
procurator  is  not  present  except  he  acts  as  advocate 
when  the  diocese  is  a  party  to  the  suit.  The  actu- 
ary will  write  his  acts  as  in  a  criminal  case,  simply 
chang-ing"  the  names  and  recording-  a  civil  instead  of 
a  criminal  case.  The  forms  for  an  auditor  or  judg-e- 
deleg-ate  are  the  same.  So  also  are  the  citations  to 
the  parties'  and  to  witnesses.  The  examination  of 
witnesses  is  in  form  the  same  in  a  civil  as  in  a  crim- 
inal case  except  that  to-day  both  parties  are  usually 
present  when  the  examination  takes  place.  Remis- 
sorial  letters  are  also  the  same.  The  judgx  in  a 
civil  case  nia}^  be  challenged  as  in  a  criminal  one  and 


416  LJiGAIv    FORMULARY. 

the  ensuing-  process  is  similar.  Arbiters  are  ap- 
pointed and  decide  on  the  challeng-e,  each  party  ap- 
pointing- one  arbiter,  the  judg-e  choosing-  neither. 
The  form  for  drawing-  the  beg-inning-  and  ending-  of 
the  definitive  sentence,  for  appealing-  and  for  declar- 
ing- the  appeal  extinct  are  practically  the  same  in  a 
civil  as  in  a  criminal  trial.  They  were  g-iven  in  pre- 
ceding- chapters  of  the  third  part  of  this  work. 

466.  It  may  be  convenient  to  g-ive  a  form  for  a 
civil  libellus.     A  property  case  is  supposed: 

"To  the  diocesan  curia  of  (name  the  diocese.) 
Most  Reverend  N.  N.,  ordinary  judg-e. 

1^.  Your  orator,  St.  Mary's  church  and  parish  of 
the  town  of  Y — ,  a  regfularly  org-ani^ed  and  recog-- 
nized  ecclesiastico-juridical  person,  throug-h  its  rec- 
tor, Rev.  N.,  respectfully  shows  unto  the  curia  that 
on  or  about  the  first  day  of  August,  1890,  the  church 
and  parish  of  St.  John  in  the  city  of  X,  throug-h  its 
then  pastor.  Rev.  A.,  borrowed  of  the  church  of  St. 
Mary  in  Y—  the  sum  of  $5,000. 

2°.  Your  orator  further  shows  that  the  said  Rev. 
A.  g-ave  his  note  as  pastor  for  the  said  sum  of  $5,000, 
in  favor  of  St.  Mary's  church,  said  note  to  be  due 
and  pavable  in  three  years  from-  date,  or  Aug-.  1, 
1893. 

3^  Your  orator  further  shows  that  the  said  note 
has  not  been  paid,  nor  any  settlement  made  therefor, 
althoug-h  proper  and  explicit  demand  has  been  made 
for  the  same. 

4°.  Your  orator  further  shows  that  since  the  said 
note  was  g-iven,  i.  e.,  since  Aug-.  1.  1890,  a  chang-e  of 
rectors  hasoccurredihSt.  John'schurchof  X,  and  that 
the  present  rector  of  the  said  St.  John's,  Rev.  W.,  has 
refused  to  pay  or  even  to  acknowledg'e  as  due  the 
said  note  of  $5,000  and  the  debt  which  it  represents. 

5°.  Therefore  your  orator  asks  the  aid  of  this 
diocesan  curia  in  the  premises  and   that  the  above 


ANSWER   OF    DEFENDANT.  417 

Rev.  W.  as  rector  of  St.  John's  church,  the  defend- 
ant in  this  suit,  may  appear  and  answer  this  your 
orator's  bill  and  that  he  may  come  to  a  fair  and  just 
accounting-  touching-  the  amount  due  to  your  orator 
upon  the  note  hereinbefore  mentioned  and  the  inter- 
est accruing*  thereon  for  the  term  of  years  since  the 
said  note  was  g-iven. 

6^  And  that  he  may  be  decreed  to  pay  forthwith  to 
your  orator  the  amount  which  shall  be  found  due  to 
him  thereon  and  the  interest  thereon,  tog'ether  with 
your  orator's  reasonable  costs  and  chariifes  in  this 
behalf  sustained;  and  that  your  orator  may  have 
such  other  and  further  relief  in  the  premises  as  shall 
be  agfreeable  to  equity  and  g"ood  conscience,  and  that 
your  orator  may  be  gfranted  whatever  decrees,  sen- 
tences and  commands  may  be  necessar}''  or  opportune 
in  the  premises  for  the  obtaining*  his  full  rig^hts  and 
equities  and  all  other  remedies,  not  only  as  asked  but 
also  as  may  be  better  conducive  to  obtaining-  his  full 
rig^hts  in  any  other  way  by  law,  statute  or  custom. 

May  it  please  the  court,  the  premises  being*  con- 
sidered, to  gfrant  to  3^our  orator  the  writ  of  citation 
to  be  issued  out  of  and  under  the  seal  of  this  court 
to  be  directed  to  the  said  Rev.  W.,  rector  of  St. 
John's  church  in  X.,  the  defendant  herein,  thereby 
commanding"  him  on  a  certain  day  and'  under  a  cer- 
tain penalty  personally  to  be  and  appear  before  this 
court,  then  and  there  to  answer  the  premises  and  to 
stand  to  and  abide  by  the  order  and  decree  of  the 
court  herein.  And  vour  orator  will  ever  prav. 
Dated  Sept.  5,  1894. 
Rev.  N.,  rector  of  St.  Mary's  church  for  St.  Mary's 

Church  in  Y.     A.  B.,  Advocate  for  complainant." 

467.  Following-   is  a    form   for   a  citation   in   the 

above  case: 
54 


418  LEGAIv    FORMUIvARY. 

"Diocesan  Curia  of  N- 
V.  Rev.  N.  Judge. 
Civil  Department. 
To  the  Rev.   W.,   rector  of  St.  John's  church  in 
X.,  g-reeting-.     You  are  hereby  notified  that  a  Bill  of 
Complaint  has  been  filed  ag-ainst  you  in  the  diocesan 
curia  of  N — ,  civil  department,  by  the  Rev.  N.,  rec- 
tor of  St.  Mary's  church  in  Y — as  complainant,  and 
that  if  you  desire  to  defend   the   same  you  are   re- 
quired to  have  your  appearance  entered  in  this  court 
v^ithin  twenty  days  from  this  date  and  your  written 
answer  filed  with  the  chancellor  or  actuary  of   this 
curia  on  or  before  the  15th  day  of  October,  1894. 

Hereof  fail  not  under  the  penalties  by  law  made 
and  provided,  and  especially  that  of  taking  the  bill 
for  confessed.     In  testimony  whereof. 

N.  N.  Vicar  General  and  Judge. 
Given  in  N—  this  fifth  day  of  Sept.  1894. 
A.  B.,  Advocate  for  Complainant. 

N.  Chancellor." 

468.  Polio wMUg  is  a  form  for  answer  to  the  bill: 

"Rev.  N.,  complainant, 

vs. 
Rev.  W.,  defendant. 

Diocesan  Curia,  of  N — 

V.  Rev.  N.  N.  Vicar  General,  Judge. 

Civil  Department. 

Comes  now    the   Rev.    W.     before    this    court  to 

answ^er  as  defendant  the  bill  of  complaint  herein  filed 

by  the  Rev.   N.,   and  reserving  all  rights  to  take  at 

any  time  exceptions  allowed  by  law,  now  for  answer 

says: 

1°  He  admits  that  the  church  of  St.  Mary  in  Y — 
is  a  regularly  organized  parish,  but  denies  that  the 
church  and  parish  of  St.  John  in  X —  borrowed  of 
the  said  St.  Mary's  church  the  sum  of  $5,000. 

2^  The  defendant  confesses  ignorance  as  to 
whether  or  not  the  said  Rev.    A.  gave  his  note  for 


ANSWER   IN   CIVIL   CASE.  419 

$5,000  in  favor  of  St.  Mary's  church;  but  he  deaies 
that  he,  Rev.  A.,  did  or  could  have  done  such  an  act 
as  pastor  of  St.  John's. 

3°  This  defendant  confesses  ig^norance  as  to 
whether  or  not  the  note  in  question  has  been  paid. 

4°  This  defendant  admits  that  since  Aug*.  1,  1890, 
a  chang'e  of  rectors  has  occurred  in  St.  John's  church, 
and  that  the  present  rector,  Rev.  W.  who  is  also  de- 
fendant in  this  case,  has  refused  to  pay  the  said  note 
for  $5,000,  and  has  even  refused  to  acknowledg'e  it 
as  due. 

5^  Further  this  defendant  answering*  says  that 
the  said  sum  of  $5,000,  alleg^ed  to  have  been  bor- 
rowed for  St.  John's  church,  was  never  used  for  the 
said  St.  John's  church.  Neither  was  the  said  Rev. 
A.  ever  authorized  by  the  proper  diocesan  and  dele- 
g'ated  authority  to  borrow  the  said  sum  of  $5,000  for 
the  said  St.  John's  church. 

The  defendant,  reserving*  to  himself  the  rig'ht  to 
make  further  answer  when  necessary  to  the  bill  of 
complaint,  now  charg*es  and  respectfully  represents 
to  the  V.  Rev.  Judg*e  that  this  suit  was  begun 
by  the  complainant  temerariousl}^  and  without  foun- 
dation in  law,  much  to  the  inconvenience,  damag*e, 
injury  and  pecuniar}^  loss  and  expense  of  the  de- 
fendant. He  therefore  humbly  prays  to  be  hence 
dismissed  with  an  allowance  for  his  reasonable  costs 
and  charg*es  and  damag*es  in  this  behalf  most  wrong*- 

fully  sustained.     Dated . 

N.  B.,  Advocate  for  Defendant. 

N.  W.,  Defendant." 

469.  The  definitive  sentence  in  the  above  civil  case 
may  be  drawn  as  follows: 

"In  the  name  of  God,  amen.  We,  N.  N.  ordinary 
judg*e,  seated  in  our  tribunal,  having*  seen  and  care- 
fully considered  all  and  sing-ular  the  matters  in  the 
cause  tried  before  us  concerning*  the  claim  of  St. 
Mary's  church  of   Y.,   throug'h   its  rector,  Rev.    N. 


420  LEGAL    FORMULARY. 

ag-ainst  St.  John's  church  of  X.  for  the  sum  of  $5,000 
and  interest  claimed  to  be  due  and  owing-  because  of 
a  note  g-iven  for  said  sum  by  the  pastor  of  St.  John's 
church,  sig-ned  as  pastor;  having-  seen  and  careful!}^ 
considered  the  bill  of  complaint,  the  answer  thereto, 
and  the  depositions  of  witnesses,  documents  and 
other  proofs  advanced  for  and  against  the  said  claim; 
having  heard  and  maturely  weighed  the  arg-uments 
on  the  law  and  facts  as  presented  by  each  side;  hav- 
ing seen  all  that  should  be  seen  and  considered  all 
that  should  be  considered;  having  only  God,  the 
fountain  of  justice,  before  our  eyes,  and  invoking  the 
sacred  name  of  Christ,  by  this  our  definitive  sentence 
which  we  g-ive  in  this  writing-,  we  say,  declare,  pro- 
nounce and  give  sentence  that:  1^  The  church  of 
St.  Mary  of  Y.  on  Aug.  1,  1890,  lent  to  Rev.  A., 
who  was  then  pastor  of  St.  John's  church  in  X.,  the 
sum  of  $5,000.  2^  That  the  said  Rev.  A.  gave  his 
note  for  $5,000,  which  he  signed  as  pastor  of  St. 
John's  church  of  X.  3^  The  said  note  or  sum  of 
$5,000  has  not  been  repaid  to  St.  Mary's  church  of 
Y.  But,  considering-  that  the  said  St.  John's  church 
had  no  canonical  permission  to  borrow  $5,000,  and  to 
pledge  itself  for  such  sum;  considering-  that  the  said 
$5,000  was  not  shown  to  have  been  used  for  St. 
John's  church  of  X.;  considering-  that  a  church  is 
not  held  for  the  dereliction  of  its  pastor,  according- 
to  rule  76  in  Sexto  "Delictum  personae  non  debet  in 
detrimentum  ecclesiae  redundare;"  therefore  4^  The 
defendant  in  this  case,  the  church  of  St.  John  in  X., 
through  its  pastor,  Rev.  W.,  is  not  oblig'ed  or  holden 
to  pay  the  said  $5,000,  nor  any  part  thereof,  and  we 
dismiss  the  said  defendant  with  an  allowance  for  his 
legal  costs  herein  sustained.  Thus  and  every  other 
best  way.  This  sentence  was  given,  read  and  pub- 
lished in  —  on  the  —  day  of  —  18  — .  Thus  we  have 
pronounced  seated  in  court. 

N.  Vicar  General. 
N.  Actuary." 


CHAPTER  XVIII. 

FORMS   FOR   SUMMARY    CIVIL   PROCESS. 

469.  The  procedure  under  "Cum  maofnopere"  is 
of  oblig-ation  in  all  trials  of  criminal  and  disciplinary 
causes  of  ecclesiastics  in  the  United  States.  It  is  in 
some  respects  a  summary  process,  since  on  certain 
points  it  shortens  the  ordinary  trial. 

In  criminal  processes  ex  notorio,  not  onl}^  some 
but  all  the  formalities  of  solemn  or  ordinary  trials 
are  dispensed  with,  except  those  which  re^^fard  the 
establishment  of  the  notoriety  and  the  citation  for 
the  final  sentence.  Ag-ain  in  sentences  ex  informata 
conscientia,  all  formalities  whatever  of  ordinary 
trials  are  omitted,  and  the  sentences  may  be  pro- 
nounced without  any  trial  or  judicial  formality  what- 
ever.    In  fact  they  are  extra-judicial  sentences. 

But  in  civil  cases,  the  ordinary  procedure  outlined 
in  the  preceding-  chapter  should  be  followed,  except 
in  the  matters  where  b\^  pontifical  constitution  a 
summary  process  is  allowed.  (C/.  Clementiiia,  Saepe 
2,  de  Verboriim  Significatione ;  Clem.  Dispendiosam 
2,  de  Jiidiciis.) 

470.  A  summary  trial  is  one  in  which  for  the  more 
speedy  termination  of  the  process,  certain  formalities 
are  by  law  specifically  allowed  to  be  omitted.  All 
essential  forms  must  be  retained  and  the  proofs  must 
be  just  as  complete  in  summary  as  in  ordinar}^  trials. 
But  according-  to  the  above  Clementine  constitution 

421 


422  LEGAL   FORMULARY. 

in  a  summary  trial,  1'-  no  written  libellus  is  required 
and  the  complaint  may  be  made  orally  provided  it  is 
inserted  in  the  acts;  2^  no  litis  contestatio  strictly  is 
required,  but  when  the  jud^e  has  cited  the  defend- 
ant he  may  take  testimony;  3^  the  proceeding's  may 
take  place  on  court  ferials,  but  not  on  Sundays  or 
holydays  of  oblig-ation;  4*^  no  co7iclusio  i7i  causa  is 
necessary,  and  the  final  summary  should  be  made  as 
short  as  possible;  5"^  no  peremptory  but  only  a 
simple  citation  to  hear  sentence  is  necessary;  6°  the 
judge  need  not  be  seated  in  giving-  sentence.  How- 
ever both  parties  must  be  cited  for  trial,  the  proofs 
must  be  just  as  full  and  the  rig-ht  of  defense  just  as 
unimpaired  as  in  ordinary,  solemn  trials.  Legiti- 
mate and  reasonable  exceptions  and  appeals  must 
also  be  allowed. 

471.  The  causes  in  which  the  law  mentioned  above 
allows  a  summary  process  are:  All  questions  con- 
cerning* elections  to  ecclesiastical  offices  or  dig'nities; 
appointments  to  parishes  or  offices  in  the  church; 
questions  concerning"  tithes  or  means  of  support  for 
incumbents  of  church  positions;  matrimonial  causes. 
But  when  there  is  question  of  the  validity  or  millity 
of  a  marriage  then  the  special  matrimonial  process 
ordered  by  Benedict  XIV,  Dei  viiseratione,  must  be 
followed.  {Cf.  Marriag-e  Process  in  U.  S.  by  Rev, 
Dr.  S.  B.  Smith.     A  very  useful  zuork.) 

Likewise  a  special  process  was  ordered  by  Bene- 
dict XIV  for  causes  concerning  the  nullity  of  a  re- 
ligious profession.  A  defensor  is  to  be  appointed  in 
the  same  way  (n.  82  above)  as  for  marriage  cases. 
{Cf,  Bull,  Si  data77i;  Bouix  de  Judiciis  II,  pg".  467.) 
Finally,   not  only  the  above  causes  may  be  tried  by 


EXCEPTING    TO   CANDIDATES.  423 

summary  process,  but  also  all  questions  or  causes 
which  depend  or  touch  upon  them. 

In  the  same  summary  manner  may  be  tried  1°  causes 
of  the  poor,  of  widows,  orphans,  stratig^ers  and  the 
miserable;  2"^  causes  of  religious;  3°  questions  of 
food,  spoliation,  deposit,  rewards;  4°  causes  of 
small  moment  and  also  such  as  will  not  admit  of  de- 
lay because  of  imminent  dang"er. 

472.  The  actuary  should  be^in  his  acts  in  a  sum- 
mar}"  case  thus:  "This  is  a  sinnmary  civil  process 
concerning"  ex.  g-.  certain  exceptions  made  af^i^ainst 
the  election   (or  nomination)  of  N.  N.  to  the  office  of 

."     Such   a  beg'inning'  will  at  once  give  notice 

that  the  process  is  summary,  and  mention  of  the 
matter  to  be  tried  will  at  once  make  evident  whether 
or  not  the  law  allows  a  summ.ary  process  for  such  a 
cause.  The  other  acts  are  recorded  as  in  ordinary 
civil  cases,  omitting"  those  formalities  specifically 
allowed  by  law  to  be  omitted,  and  inserting" 
"" suniniarie' '  before  ''front  de  jure"  where  that  ex- 
pression occurs. 

473.  Following  is  a  form  for  entering  an  exception 
against  the  nomination  or  election  of  a  person  to 
office: 

"Comes  now  the  Rev.  X.  before  the  V.  Rev.  N., 
vicar  general  of  the  Most  Rev.  Bishop  N.,  and  says 
that  great  injury  will  result  to  the  church  if  Rev. 
D.  is  nominated  or  chosen  to  the  office  of  (mention 
the  office,  such  as  rector,  canon,  vicar  general, 
bishop);  and  he  states  further  that  there  is  grave 
doubt  whether  he  can  be  legalh^  chosen.  Where- 
fore to  preclude  all  harm  which  might  come  to  the 
church  from  such  a  nomination  or  choice,  whose 
utility  each  one  belonging  to  its  body  should  procure, 


424  le:gaiv  formulary. 

he  proposes  ag'ainst  the  aforesaid  Rev.  D.  the  fol- 
lowing* points  of  exception;  and  in  these  writing's 
swears  that  he  is  not  moved  by  any  desire  to  calum- 
niate nor  any  ill-will,  passion  or  animosity  against 
the  said  Rev.  D.,  but  only  by  zealfor  the  public 
welfare.  Therefore  also  he  does  neither  intend  nor 
wish  that  the  said  Rev.  D.  shall  be  punished  for  any- 
thing* contained  in  these  exceptions,  but  only  that  he 
shall  not  be  nominated  or  chosen  to  such  dignity  or 
office.  And  he  further  protests  that  if  proper  inves- 
tigation according  to  law  is  not  made  of  his  excep- 
tions which  he  lawfully  proposes,  and  a  nomination 
and  choice  is  nevertheless  in  spite  thereof  made  of 
the  said  Rev.  D.  then  the  said  nomination  and  choice 
shall  be  null  and  of  no  value;  and  he  appeals  from  it 
to  the  superiors  as  by  law  necessary.  The  points  of 
exception  are: 

1°  That  the  aforesaid  Rev.  D.  is  unfit  and  does 
not  know  what  is  necessary  for  such  an  office,  name- 
ly, canon  law  and  theology,  and  Latin. 

2°  That  he  was  suspended  formerly  for  cause. 

3    That  he  is  given  to  excessive  drinking. 

4^  That  by  a  writing  which  through  another  he 
had  printed,  he  grossl}^  abused  ecclesiastical  and 
apostolical  authority,  namely,  (give  place,  date  and 
circumstance  of  crime.)  The  witnesses  and  proofs 
to  sustain  the  first  point  are:     (Give  names.) 

Done  this  —  day  of  —  A.  D.  — ,  at  — .  I,  X.,  ex- 
cept, protest,  insist  and  appeal  as  above." 

It  should  be  recollected  that  crimes  may  always 
be  urged  by  way  of  exception  against  the  delinquent 
seeking  preferment.  No  prescription  can  be  urged 
by  him  in  such  a  case  even  thoug'h  it  migflit  effectually 
estop  a  criminal  proceeding-.     {See  f.  4g4  belozu.) 

474.  After  a  summary  civil  trial  on  this  bill  of  ex- 
ceptions or  complaint,  the  judge  may  g'ive  sentence 
in  the  following"  form: 


DECISION    OF    EXCEPTIONS.  425 

"In  the  name  of  God,  amen.  We,  N.,  ordinary 
(deleg"ated)  judg-e,  havin"-  seen  and  maturely  consid- 
ered all  and  sing"ular  the  matters  in  the  cause  tried 
before  us  concerning  the  exceptions  made  civilh'  by 
Rev.  X.  against  the  nomination  or  choice  of  Rev.  D. 

for  the  office  of  ;  havino-  seen  the  citation  to  the 

said  Rev.  D.,  the  depositions  of  witnesses  and  other 
proofs  advanced  for  and  ag"ainst  the  said  exceptions; 
having-  heard  and  carefully  weighed  the  allegations 
of  both  parties;  having  considered  all  that  should 
be  considered;  having  only  God  before  our  eyes  and 
invoking  the  sacred  name  of  Christ,  by  this  our 
definitive  sentence  which  we  also  give  in  writing,  we 
say,  declare,  pronounce  and  give  sentence  that: 
1°  A  canonical  impediment  has  been  conclusively 
proved  to  exist  why  Rev.  D.  should  be  repelled  from 
the  office  of  — ;  namel\%  that  Rev.  D.  does  not  know 
canon  law,  which  knowledge  is  required  for  the  said 
office  and  therefore  that  according  to  the  sacred 
canons  [lib.  7,  /.  6,  c.  7)  he,   the  said  Rev.  D.,   is  not 

eligible  to  the  said  office  of  .     2""  That  Rev.  D. 

is  shown  guilty  of  having  used  and  published  in- 
jurious language  against  ecclesiastical  and  apostolic 
authority  and  therefore  is  unfit  to  be  rewarded  by 
promotion  to  the  office  of .  Wherefore  we  de- 
clare that  he   cannot  be   nominated   or  chosen  to  the 

office  of ;  and  if  he  is  chosen  we  pronounce  that 

the  choice  will  be  ipso  jure  null.  Thus  and  every 
other  best  way.  This  sentence  was  given,  read  and 
published  this  —  day  of  —  A.  D.  —  at  — .  Thus  we 
pronounced  seated  in  our  tribunal.  N.  Judge. 

N.  Actuary." 

475.  When  church  property  is  to  be  alienated  the 
summary  process  may  be  used  in  establishing  the 
necessity  or  evident  utility  for  alienation.  The  de- 
cision or  decree  in  the  matter  may  then  be  draw^n 
according-  to  the  forms  g-iven  above  in  n.  324,  325. 


55 


426  IvEGAIv   FORMULARY. 

4 

Following  is  a  form  for  a  sentence  or  decree  in  a 
cause  of  nullity  of  relig'ious  profession: 

"We,  Bishop  of  N.,  considering*  the  petition  and 
instance  of  Sister  N.,  named  in  the  world  A.  B.,  a 
professed  relig'ious  (or  novice)  in  the  convent  of  N., 
and  dwelling  in  cloister  v^ith  the  habit,  which  peti- 
tion concerning  the  nullity  of  her  profession  was 
leg*ally  introduced  before  us  within  five  years  from 
said  profession;  considering*  the  proofs  advanced  for 
her  side  and  the  whole  process  formulated  in  the 
case,  from  which  it  is  established  that  force  was 
used,  and  fear  sufficient  to  move  a  strong*  man,  was 
induced  by  C.  in  order  to  force  the  said  A.  B.  to 
take  the  habit  of  a  relig*ious  and  make  profession  in 
the  said  convent;  we  say  and  declare  that  the  pro- 
fession (or  receiving*  the  habit)  made  by  the  said  A. 
B.  was  and  is  null,  and  that  she  is  not  bound  to  the 
observance  of  the  rule  of  the  said  convent  and  that 
consequently  it  was  and  is  allowed  her  to  return  to 
the  world  without  violation  of  her  vows,  and  to  leave 
the  cloister,  and  we  willing*ly  g'rant  such  leave. 
Given  at  —  on  &c. 

[h.  s.]  N.  Bishop  of  N. 

N.  Actuary." 

If  the  relig*ious  community  is  subject  immediately 
to  the  bishop  he  alone  is  the  judge;  but  if  it  has  its 
own  superior,  as  in  the  case  of  men,  then  the  relig*- 
ious  superior  with  the  bishop  will  g*ive  a  joint 
sentence.     (C/.  Benedict  XIV ^  Bull,  Si  da  tarn.) 


CHAPTER  XIX. 

RUIvES    FOR    PUNISHMENTS. 

476.  A  punishment  in  g^eneral  is  an  evil,  a  pain  or 
a  suffering",  whether  of  body  or  soul,  inflicted  for  a 
crime.  There  can  be  no  punishment  when  there  is 
no  crime:  "Sine  culpa  non  est  aliquis  puniendus." 
{Rule  2^  in  d°)  Ecclesiastical  punishments  are  in- 
flicted for  crimes,  not  sins.  By  a  crime  in  its  leg^al 
or  canonical  sense  is  meant  not  every  sin  but  only 
certain  g^rave  sins  to  which  the  law  of  the  church 
has  attached  a  punishment  for  the  external  forum. 
Certain  punishments  or  remedies  are  z-aW^A  preven- 
tive because  they  aim  at  preventing-  the  serious  fall 
or  repetition  of  a  fall  in  those  inclined  to  crimes. 
Other  punishments  are  called  repressive  because 
they  aim  to  repress  crimes  in  one  fallen  and  to  bring- 
him  back  to  the  rig-ht  way. 

477.  For  some  crimes  the  law  itself  specifically^ 
determines  the  punishment,  which  is  then  called 
ordinary.  For  other  crimes  the  law  enacts  that  they 
are  punishable,  and  therefore  enacts  a  penal  sanc- 
tion, but  it  does  not  specify  the  punishment,  leaving- 
it  to  the  judg-ment  of  the  judg-e  to  inflict  what  he 
deems  proper.  The  judg-e  in  punishing- must  alwa\^s 
quote  the  law  under  which  he  inflicts  punishment. 
Ordinary  punishments  are  enacted  either  as  latce 
sententicF  which  are  incurred  ipso  facto  for  the  inter- 
nal forum  when  the  crime  is  committed,   or  ferejidce 


428  LEGAL    FORMULARY. 

sententm,  which  require  a  trial  and  sentence  b}^  the 
judg^e.  A  crime  to  be  punishable  must  be  wilful, 
external,  personally  committed,  mortal  or  g^rievous, 
complete,  juridically  proved,  and  desig^nated  in  law 
as  punishable.  - 

478.  The  rules  following  may  be  helpful  to  judg-es: 
1°  Only  the  supreme  lawgiver,  the  Pope,  can  intro- 
duce a  new  ecclesiastical  punishment.  Bishops  must 
use  those  sanctioned  by  the  canons.  2°  Punishments 
or  remedies  sanctioned  by  the  canons  are  of  two 
kinds,  preventive  and  repressive.  3°  The  judge 
should  always  bear  in  mind  that  the  reform  of  the 
criminal  is  the  aim  of  the  church  in  punishing  even 
by  vindicatory  sentences.  4°  Therefore,  it  follows 
that  when  an  ecclesiastic  falls  into  crime,  nothing  as 
a  rule  should  be  done,  if  he  amends  and  repairs  his 
offense.  But  if  he  persists  in  his  criminal  course,  as 
a  rule  he  should  be  first  warned  at  least  twice;  then 
if  the  admonitions  prove  of  no  avail  he  should  be 
given  the  precept;  if  even  this  is  not  effective,  he 
should  be  put  on  trial,  and  if  convicted  be  punished 
viedicinally,  that  is,  by  censures;  finally,  if  even  these 
fail  to  reform  him,  vindicator}^  punishments  may 
follow. 

479.  However,  5°  where  the  crime  committed  is  of 
g'reat  enormity  and  it  is  evident  that  the  delinquent 
acted  with  malice  prepense,  or  also  where  the  great- 
ness of  the  scandal  given  requires  it,  the  criminal 
trial  may  at  once  be  beg*un  by  the  fiscal  procurator 
filing  his  complaint,  without  the  previous  admoni- 
tions or  precept  having*  been  g-iven  by  the  bishop. 
On  conviction,  vindicatory  punishment,  according  to 
the  canons,  may  at  once  be  inflicted  on  the  criminal. 


RULES   FOR    PUNISHMENTS.  429 

(C/.  '^Cuin  7na§^)iopereJ"  art.  ii ;  III  Coiot.  Bait, 
n.  300.)  6^  In  gfeneral  it  belong"s  to  the  ordinary  to 
assess  after  trial  what  punishment  he  deems  best 
adapted  for  the  case,  whether  onl}^  preventive  or  re- 
pressive, and  also  the  specific  preventive  or  repres- 
sive punishment.  7°  But  where  the  law  clearly 
states  what  punishment  should  be  inflicted,  the 
judg'e  should  not  chang-e  it  except  for  g^rave  reason. 
8°  The  judg-e  should  always  incline  to  mercy  rather 
than  to.  severity.  9°  Finally  it  should  be  remem- 
bered that  when  a  crime  or  fault  has  once  been  pun- 
ished even  by  a  preventive  remedy,  such  as  a  retreat, 
it  cannot  a^ain  be  punished;  althoug'h  the  crime  and 
its  punishment  may  be  introduced  as  evidence  in  a 
new  case.     {Reg-ula  juris  8j  in  6°.) 

480.  The  chief  preventive  remedies  or  punishments 
are,  spiritual  exercises,  the  admonitions  and  the 
canonical  precept.  {Cum  niag'noperc ,  art.  4.)  The 
spiritual  retreat  here  meant  is  not  the  common  re- 
treat made  by  the  diocesan  clerg-y,  but  a  special  one 
imposed  on  an  ecclesiastic  by  the  ordinary.  Hence 
this  retreat  cannot  be  imposed  except  for  an  offense 
or  some  other  action  which  is  proximate  to  an 
offense  and  partakes  of  its  nature.  The  offense, 
however,  must  be  not  occult,  but  external  and  known 
to  others.  {Cf.  Acta  S.  Sedis,  vol.  ij.  pg.  377.) 
The  retreat  should  be  imposed  in  writing*,  and  the 
reason  for  it  specified.  Forms  for  the  admonitions 
and  the  precept  were  g-iven  in  a  preceding*  chapter  n. 
331  and  332.     The  following-  form  of  letter  may  be 

used  in  imposing"  the  retreat: 

(Place  and  date.) 
"Reverend  Sir: — 

Having  maturely  considered  in  itself  and  its  cir- 


430  LEGAL    FORMULARY. 

cumstances  the  offense  which  you  have  committed, 
as  shown  by  proofs  in  our  possession,  viz.,  (state  the 
offense),  We  deem  it  wise  and  prudent  to  impose  a 
preventive  remedy,  as  in  "Cum  mag'nopere"  art. 
4,  and  We  therefore  instruct  you  to  make  a  spiritual 
retreat  of  three  (or  more)  days  in  (state  place)  at 
your  own  expense;  and  We  further  order  that  you 
file  with  us  within  fifteen  days  (state  time)  from  the 
date  of  these  letters  a  certificate  from  the  superior 
of  the  said  institute  to  the  effect  that  you  have  made 
the  said  prescribed  retreat.  This  do  and  may  God 
have  you  in  his  holy  keeping*. 

Yours  faithfully  in  Christ, 
To  Rev.  N.  N.  N.  N.  Bishop  of  N." 

481.  The  above  preventive  remedies  may  be  in- 
flicted after  a  summary  investigation  as  stated  above 
in  n.  341.  If  it  is  necessary  to  inflict  other  and 
repressive  punishments,  the  process  outlined  in 
"Cum  mag-nopere"  art.  6,  and  following,  must  be 
used.  It  is  left  to  the  judgment  of  the  ordinar}^  to 
impose  by  his  sentence  after  trial  the  repressive 
punishment  he  deems  best  adapted  in  the  circum- 
stances. However  it  must  not  be  excessive  under 
pain  of  nullity.  While  all  repressive  punishments 
have  in  view  the  reform  of  the  delinquent,  still  they 
are  divided  in  medicinal  and  vindicatory.  The 
former  are  called  censures,  the  chief  aim  of  which  is 
to  curb  and  break  the  contumacy  of  the  delinquent; 
the  latter,  or  vindicatory  punishments  have  the  vin- 
dication of  the  law  and  the  public  good  as  their  chief 
object. 

482.  There  are  three  repressive  medicinal  punish- 
ments or  censures,  namely,  excommunication,  sus- 
pension and  interdict.  They  are  designed  chiefly 
against  obstinate  persistence  in  crime;  hence  a  per- 


RULES    FOR    CENSURES.  431 

son  to  be  liable  to  any  of  these  censures  should  not 
only  be  g"uilty  of  crime  but  of  persistence  in  it  after 
having  been  duly  warned.  This  warning-  which 
must  precede  the  punishment  can  emanate  either 
from  the  law  itself  or  from  the  superior.  Hence  a 
person  may  become  contumacious  either  when  he 
does  not  heed  the  vvarnino-  of  his  superior  addressed 
to  him  individually  or  when  he  violates  an  ecclesias- 
tical law  with  full  knowledge  of  the  law  and  of  the 
annexed  censure.  Censures  are  either  lalce  ov  fer- 
endcp  sententice ;  the  former  being  incurred  in  foro 
intcrno  by  the  very  fact  of  committing- the  crime,  the 
latter  being*  incurred  only  after  sentence  of  the  ordi- 
nary or  superior.  But  in  order  that  a  sentence  latce 
sententice  may  bind  in  foro  externo  a  declaratory 
sentence  of  the  censure  must  be  g^iven  by  the  sup- 
erior and  this  must  be  preceded  by  a  citation  to  the 
delinquent  to  show  cause  why  the  sentence  declara- 
tory of  the  censure  should  not  be  passed.  A  censure 
which  is  alj  homine  or  ferendcB  sententice^  for  validitv 
requires  previous  warning's  and  a  trial  before  it  is 
inflicted. 

483.  Since  these  censures  are  intended  to  break  the 
obstinacy  or  contumacy  of  the  delinquent,  they 
should  be  inflicted  indeterminately  as  to  time.  But 
suspension  and  interdict  ma}^  also  be  inflicted  as  vin- 
dicatory punishments,  not  as  censures.  In  such  a 
case  they  may  be  imposed  for  a  set  time,  but  in  the 
sentence  it  should  be  stated  that  the  suspension  or 
interdict  is  a  punishment,  not  a  censure.  However, 
excommunication  can  never  be  thus  inflicted,  for  it 
is  never  anything-  but  a  censure  aud  must  be 
indeterminate. 


432  IvEGAIv    FORMULARY. 

484.  Following- are  some  rules  reg-arding- censures: 
1°  It  is  the  unanimous  teaching"  of  canonists  that 
censures  can  be  inflicted  validly  only  for  gfrave  of- 
fenses. 2°  A  censure  can  never  be'  inflicted  for  a 
venial  fault.  3°  Censures  are  always  very  severe 
punishments  even  if  inflicted  for  only  a  few  days. 
4^  Censures  cannot  be  imposed,  even  for  gfrave  of- 
fenses, except  after  all  other  milder  punishments 
have  been  applied  and  failed  to  produce  any  effect. 
{Cf.  Benedict  XIV  De  Synodo,  I.  lo,  c.  /,  n.  2.) 
5^  Censures  are  not  to  be  inflicted  even  for  the 
g-reatest  crimes,  unless  the  delinquent  has  openly  and 
incontestibly  shown  his  incorrig-ible  and  obstinate 
persistence  in  crime.  {Cf.  Fessler,  der  Kirchenbann 
^g.  ly ;  Kober,  der  Kirchenbann,  -pg-.  i/j.^;  Smith, 
Eleynents  III,  n.  20J0.)  This  incorrig-ibility  is 
shown  by  the  delinquent  breaking*  the  canonical  pre- 
cept or  disreg^arding*  several  admonitions,  the  g^iving- 
and  the  disreg^arding-  of  which  precept  or  admonition 
must  be  judicially  shown.  In  other  words,  censures 
cannot  be  inflicted  until  preventive  remedies  have 
been  tried  in  vain.  6°  Censures,  as  such,  cannot  be 
inflicted  for  crimes,  which  are  entirely  past;  thoug^h 
vindicatory  punishment  may  be  imposed.  7°  A 
bishop,  by  general  mandate  on  a  g^rave  matter  either 
in  or  out  of  synod,  may  impose  a  censure  on  any  one 
who  in  the  future  will  violate  this  mandate,  and  the 
censure  may  even  be,  latce  sententiae.  Further  in  a 
particular  case  by  way  of  individual  sentence  it  is 
certain  that  a  bishop  may  threaten  for  g^ood  reasons 
a  censure  ferendae  sententiae.  But  it  is  g^enerally 
held  that  a  bishop  cannot  even  validly  inflict  by 
special  sentence  on  an  individual  a  correctional  puu- 


RULES   KOK    CENSURES.  433 

ishment  or  censure  to  be  incurred  if)So  facto  for 
future  crimes.  {Cf.  Caf>.  Romana  ^^  de  sent,  exami. 
m  d°,*  Glossa  in  cap.  cit.  v.  f2itnris\  Glossa  in  cap. 
2  de  const,  in  6°,  i\  conimiserunt ;  Rota,  Enchir. 
pg-.  2yj)  8°  Even  if  it  is  held  that  a  bishop  may 
inflict  such  a  particular  sentence  latae  sententiae  for 
future  crimes,  the  censure  has  no  effect  in  foro  ex- 
terno  until  juridically  declared  by  sentence  after 
citation  to  the  delinquent  to  show  cause.  9°  For- 
merly three,  but  to-day  two  or  at  least  one  peremp- 
tory warning-  are  required  before  a  censure  may  be 
inflicted  which  is  ab  homine,  or  a  J2ire  but  feroidae 
sententiae.  In  case  of  censure  a  jnre  et  latae  sen- 
tentiae the  very  law  is  a  constant  warning-  and  none 
other  is  required.  However,  a  citation  to  the  delin- 
quent to  show  cause  why  the  declaratory  sentence 
should  not  be  passed,  is  an  essential  condition  for 
validity.  (C/.  n.  jj^,  above:  also  Smith,  El  cm.  n. 
2o8y ;  Walter,  Canon  Lazu,  pg".  2'/4\  Smalzgrueber, 
I.  2,  t.  i/j.,  n.  jj ;  Santi,  /.  5,  /.  jg,  )i.  i^;  Pieran- 
tonelli,  Praxis,  t.  6,  n.  ly,  zuho  is  emphatic.) 

485.  It  may  be  asked  whether  the  so-called  "with- 
drawal of  faculties"  is  a  censure.  In  the  first  place 
the  expression  is  uncanonical  and  not  authorized  by 
the  canons;  hence  it  appears  an  attempt  to  introduce 
a  new  punishment  or  censure,  which  can  only  be  done 
by  the  supreme  authority.  The  "Cum  mag-nopere" 
art.  1,  distinctly  says  that  the  ordinary  is  to  use 
only  "remedies  established  b}^  the  canons."  (6/'. 
Cap.  I,  de  Off.  ordin.)  The  canons  do  not  mention 
a  "withdrawal  of  faculties."  Moreover,  there  is 
no  certainty    of  what  is  meant    b}^  the    expression. 

On    consultation  five  different    canonists   g-ave    five 
56 


434  LEGAIv    FORMULARY. 

different  answers.  Hence  the  expression,  "with- 
drawal of  faculties,"  "faculties  will  cease  to  be 
valid,"  is  va^ue  and  indefinite;  and  therefore  inef- 
fectual. {Cf.  Sitarez,  de  cens.  disp.  j-,  sect.  2,  n.  5/ 
Pierantonclli^  Praxis^  t.  6,  n.  21.^  The  Apostolic 
Deleg'ate,  in  g-iving"  sentence,  nomine  S.  Sedis,  on 
June  16,  1897,  held:  "Dubitari  potest  an  per  dictam 
phrasim  'withdrawal  of  faculties'  veniat  siispensio 
proprie  dicta.  Evt  cum  in  punitivis  strictior  et  benig-- 
nior  interpretatio  sit  adhibenda,  non  suspensionem 
sed  potius  simpliciter  cessationem  a  S.  Miss2e  sacri- 
ficio  importare  videtur."  Hence  it  surely  is  no  cen- 
sure, and  violation  of  the  prohibition  does  not  pro- 
duce the  effects  entailed  by  violating-  censures. 
Since  the  "withdrawal  of  faculties"  is  certainly  not 
a  censure,  if  it  is  anything,  it  must  be  a  repressive 
punishment.  Therefore  it  cannot  be  inflicted  except 
after  trial.  A  prudent  judg-e  will  not  use  the  ex- 
pression, but  will  specify  exactly  the  canonical  cen- 
sure or  punishment  he  intends  to  inflict,  because  a 
delinquent  may  with  impunity  ignore  an  uncanonical 
punishment  or  an  illeg^al  censure.  Further,  such  a 
"withdrawal,"  since  it  is  not  a  suspension,  has  no 
force  whatever  outside  the  diocese  of  the  bishop  in- 
flicting it,  and  a  priest  thus  innodated  may  licitly 
say  mass  in  the  diocese  of  another  bishop  and  receive 
and  exercise  jurisdiction  therein  without  respect  to 
such  "withdrawal." 


CHAPTER  XX. 

FORMS    FOR     CENSURES.      EXCOMMUNICATION,     SUS- 
PENSION,   INTERDICT. 

486.  Kxcommunication  is  the  "expulsion  from  the 
external  and  internal  membership  of  the  church,  the 
complete  withdrawal  of  all  g'races  and  privileg'es 
acquired  by  baptism,"  or  a^ain  it  is  defined  "as  a 
correctional  punishment  instituted  b}"  the  church  by 
which  the  excommunicate  is  separated  from  the 
communion  or  fellowship  of  the  faithful."  Thus  if 
the  excommunicated  person  is  an  ecclesiastic  he  loses 
also  all  jurisdiction  and  becomes  entirely  suspended 
from  office  and  benefice.  According*  to  present  law 
when  a  person  has  been  publicly  excommunicated  by 
name  or  denounced  by  name  as  excommunicated, 
then  must  he  be  avoided  by  all  the  faithful.  The 
publication  must  be  made  officially  and  publicly,  e.  g., 
by  posting  the  placard  on  the  church  doors  or  by 
announcing"  it  in  the  parish  church  during-  the  time 
of  service. 

487.  Excommunication  is  considered  onl}-  a  tem- 
porary state  and  is  inflicted  indeterminately,  so  that 
as  soon  as  repentance  occurs,  the  censure  should  be 
withdrawn.  Hence  excommunication  while  sus- 
pending* does  not  ipso  facto  deprive  an  ecclesiastic  of 
his  office  or  benefice.  It  is  disputed  whether  he  for- 
feits  the  income  of  his    benefice  ipso  facto  or  only 

435 


436  LKGAL    FORMULARY. 

after  sentence  of  the  judg-e  to  that  effect.  However, 
the  law  says  that  persons  who  are'  suspended,  ex- 
communicated or  interdicted,  if  they  obstinately 
remain  a  year  or  long^er  in  their  censure  and  do  not 
seek  release  from  it,  shall  be  deprived  of  their 
offices  or  benefices.  {Cap.  8,  de  cet.  et  qiial.;  Can. 
j6,  c.  II,  q.  J.)  This  deprivation  must  be  effected 
by  a  sentence  after  citation  to  show  cause. 

488.  In  excommunications  and  other  censures  a 
jure  et  latce  sentefitice  the  judg-e  or  superior  before 
making"  a  declaratory  sentence  at  the  instance  of  the 
fiscal  procurator  is  oblig-ed  for  validity  to  issue  a 
citation  to  the  delinquent  to  show  cause  why  the  ex- 
communication should  not  be  declared.  (See  n.  334 
above.)  Following  is  a  form  for  such  warning-  and 
citation: 

"We,  vicar  general  of  the  Most  Rev.  N.,  Bishop 
of  N.,  do  hereby  require,  admonish  and  cite  N.  N. 
within  six  days  from  the  date  of  these  letters,  to  ap- 
pear and  show  cause,  if  he  has  any,  why  he  should 
not  be  declared  and  denounced  to  have  fallen  into 
the  excommunication  specially  reserved  to  the  Holy 
See  in  the  bull  "Apostolicae  Sedis,"  n.  6,  because 
of  (state  reason)  'impeding-  directly  or  indirectly  the 
exercise  of  ecclesiastical  jurisdiction;'  which  term  of 
six  days  having  elapsed,  if  he  has  given  no  satisfac- 
tory excuse,  on  the  first  juridical  day  immediately 
following,  he  shall  be  declared  and  denounced  pub- 
licly excommunicated  without  further  warning  or 
citation.  Given  at  —  on  the  —  day  of  —  A.  D.  — . 
[l.  s.]  .  N.  Vicar  General. 

N.  Actuary," 

The  citation  should  specify  the  precise  excommun- 
ication incurred,  such  as  g-iven  above,  or  that  for 
imposing  violent  hands  on  a  cleric,   which  is  simply 


DECLARING    EXCOMMUNICATION.  437 

reserved  to  the  Holy  See,  n.  2,  or  whatever  other  is 
to  be  denounced.  The  citation  should  be  lec^all}' 
served,  and  on  the  person  if  possible;  otherwise  in 
his  place  of  usual  residence.  In  the  United  States, 
it  may  be  served  also  by  regfistered  mail.  {Cum 
magnopere.  Art.  /^.)  Of  course,  the  jud^e  must 
have  leg^al  proof  of  the  fact  for  which  excommunica- 
tion is  inflicted. 

489.  Following"  is  the  form  for  the  declaratory 
sentence  of  excommunication  a  jure  et  latae  sententiae\ 

"Considering-  the  report  and  motion  of  our  fiscal 
procurator,  the  depositions  of  witnesses  and  the  law 
cited  and  the  whole  process  formulated  in  our  curia 
ag^ainst  N.  N.  accused  of  impeding-  directly  or  indi- 
rectly the  exercise  of  ecclesiastical  jurisdiction  in 
resisting-  the  Most  Rev.  Bishop  of  N.  [or  accused  of 
laying'  violent  hands  on  the  ecclesiastic  X.,  or  state 
other-reason);  considering-  the  canonical  warning- and 
citation  g-iven  and  served  on  the  said  accused  to 
show  cause  why  he  should  not  be  declared  to  have 
fallen  into  excommunication,  and  nothing*  being- 
alleg-ed  to  excuse  him;  by  this  our  declarator}^  sen- 
tence we  say  and  pronounce  that  N.  N.  has  fallen 
into  major  excommunication  specially  reserved  to 
the  Holy  See,  contained  in  the  bull  "Apostolicse 
Sedis,"  and  therefore  w^e  order  that  placards  be 
affixed  in  public  places  ag-ainst  him  that  he  may  be 
avoided  by  all,  and  be  denounced  as  excommunicated, 
as  we  hereby  denounce  him.  This  and  every  other 
best  way.     Done  at  —  on  &c. 

N.  Vicar  General; 
N.  Actuar3^" 

490.  Following-  is  a  form  for  notice  or  placard  to 
be  affixed  in  the  usual  places  such  as  on  the  doors  of 
the  cathedral  and  parish  churches,  in  order  to  pub- 
lish the  excommunication: 


438  LEGAL    FORMULARY. 

"Hereby  N.  N.  by  our  ordinary  authority  is  de- 
nounced as  excommunicated  by  major  excommunica- 
tion specially  reserved  to  the  Holy  See,  and  he  is 
separated  from  intercourse  and  comrnunion  with  the 
faithful  and  deprived  of  participation  in  the  sacra- 
ments and  the  suffrag-es  of  the  church,  and  of  chris- 
tian burial  in  case  of  death;  because  he  directly  or 
indirectly  impeded  the  exercise  of  ecclesiastical  juris- 
diction (or  state  other  reason.)  In  order  therefore 
that  he  may  be  shunned  by  all,  as  we  hereby  order 
him  to  be  shunned,  we  have  ordered  these  presents 
affixed  and  published;  and  so  let  it  be  until  he  shall 
merit  absolution  from  the  Apostolic  See.  Given  at 
—  on  &c. 

[l.  s.]  N.  Vicar  General. 

N.  Actuary." 

491.  When  not  onh^  the  crime  but  also  the  con- 
tumacy  of  the  delinquent  is  surely  notorious  and  the 
excommunication,  or  other  censure,  is  a  jure  et  latae 
sententiae,  no  citation  to  show  cause  is  required  be- 
fore a  declaratory  sentence  is  passed  and  published. 
But  this  notoriety  is  then  made  evident  in  the  decree 
itself. 

Following-  is  the  wording-  of  such  a  declaratory 
sentence  lately  issued  by  the  Holy  See  itself: 

DECREE   OF    EXCOMMUNICATION. 

Whereas,  It  has  been  made  known  to  the  Holy 
See  from  undoubted  documents  that  the  priest,  N. 
N.,  by  orig-in  a  Pole,  now  being*  in  the  arch- diocese 
of  Chicag-o,  has  contumaciously  rebelled  ag-ainst 
leg-itimate  ecclesiastical  authority,  and  moreover 
calls  himself  Bishop  of  the  Catholic  Independent 
Diocese  of  Chicag-o,  and  has  published  a  letter  which 
he  calls  a  pastoral,  in  which  he  says  that  he  received 
episcopal  consecration  from  certain  heretical  bishops 


MONITION    before;   CENSURE.  439 

in  Switzerland;  our  Most  Holy  Father,  Pope  Leo 
XIII,  in  an  audience  of  the  twent3^-sixth  day  of 
April,  1898,  ordered  that  in  his  name,  by  the  present 
decree  of  this  Sacred  Cong-relation  De  Propaganda 
Fide,  it  should  be  declared  that  the  pseudo-Bishop 
N.  N.  has  incurred  "Major  E^xcommunication"  re- 
served in  the  Roman  Constitution  "Apostolical  Sedis.  " 
Moreover,  His  Holiness  commands  that  this  sentence 
of  excommunication  be  published  with  proper  in- 
structions not  only  by  the  Ordinary  of  Chicag-o  in 
his  diocese,  but  also  by  each  and  every  one  of  the 
Ordinaries  in  the  United  States  of  North  America. 
Given  at  Rome,  from  the  Palace  of  the  Sacred 
Cong-reg-ation  De  Propag^anda  Fide,  on  the  second 
day  of  May,  1898. 

M.  Card.  Ledochowski,  Prefect. 
[seal.]     a.  Archbishop  of  Larissa,  Secretary." 

492.  Following-  is  a  form  for  the  monitions  before 
inflicting-  a  censure  ab  Jioinine  or  ferendae  seutentiae 
laid  down  in  law:  ^ 

"N.  Episcopus  N.  {Vel)  N.  vicarius  g-eneralis 
Revdo  N.  N.  Moneris  tu,  Rev.  Dne,  ad  dimitten- 
dam  et  ejiciendam  in  termino  trium  dierum,  e  domo 
tuai  solitse  habitationis  mulierem  N.  tuam  concubi- 
nam,  ut  nobis  constat,  et  ab  ea  omnino  te  separan- 
dum,  et  abstinendum  a  consuetudine  cum  ea  forni- 
candi,  sub  poena  excommunicationis  (suspensionis); 
et  hoc  primo  et  pro  prima  canonica  nionitone,  instante 
promotore  fiscali.     Datum  &c. 

[iv.  s.]  N.  Episcopus  (vel  vicarius  g*en.)  N. 

N.  Actuarius." 

It  is  of  course  necessary  that  certaint}^  of  the  fact 
or  notoriety  be  had  before  any  monition  can  be  g-iven. 
If  the  first  warning-  is  not  heeded  a  second  and  a 
third  should  be  g-iven.  "Et  hoc  secundo  et  pro 
secunda   canonica    monitione;    et  hoc    tertio   et    pro 


440  LKGAL   FORMULARY. 

tertia  canonicaet  ultima  peremptoria  monitione  &c." 
If  contumacy  is  shown  by  neg"lectin^  the  peremptory 
warning*,  excommunication  may  be  declared  without 
further  citation.  Other  punishments  may  also  be 
inflicted  on  clerics,  following-  the  order  laid  down  in 
Cap.  14  sess.  25,  de  refor.  of  the  Council  of  Trent. 

493.  When  the  ordinary  threatens  censures  by 
virtue  of  a  decree  of  the  Holy  See  of  which  he  is  only 
the  executor,  since  there  is  no  appeal  from  the  de- 
cree, he  may  use  this  form  for  citation,  after  the  fis- 
cal procurator  has  prepared  the  acts  and  the  actuary 
placed  the  decree  in  them: 

"L/et  N.  be  cited  and  admonished  and  he  is  so 
cited  and  admonished  to  make  answer  on  the  first 
day  ag-ainst  the  rescript  or  decree  of  the  S.  Cong",  de 
Propag-anda,  emanating;  from  the  cause  of  N.  and 
found  in  authentic  form  in  the  acts,  which  answer  is 
ordered  for  the  first  day  after  the  date  of  this;  and 
on  the  second  day  immediately  following-  the  date  of 
this  he  is  cited  to  show  cause  why  he  should  not  be 
excommunicated;  and  on  the  third  day  likewise 
immediately  following-  the  date  of  this,  he  is  cited  to 
see  himself  excommunicated,  declared  excommuni- 
cated and  so  denounced,  without  further  citation  or 
warning-.     Given  &c. 

[iv..s.]  N.  Bishop  of  N. 

N.  Actuary." 

494.  When  a  person  has  remained  under  censure 
for  a  year  without  sig-ns  of  repentance  he  may  be 
cited  as  suspected  of  heresy  and  insordescent  in  cen- 
sure.    Following-  is  a  form: 

"Let  N.  be  cited  and  warned  and  he  is  hereby 
cited  to  appear  and  answer  concerning  his  faith  and 
to  purg-e  himself  of  the  suspicion  of  heresy  within 
the  peremptory   term  of  — —  days;  otherwise,   this 


SUSPENSION.  441 

term  having-  elapsed,  he  is  cited  to  see  himself  de- 
clared insordescent  in  censures  and  to  be  a^ain  ex- 
communicated.    Given  &c." 

In  a  similar  way  a  person  insordescent  in  censure 
may  be  deprived  of  his  benefice,  after  warning. 

495.  Suspension  is  a  "censure  by  which  an  eccle- 
siastic who  is  gruilty  of  crime  is  temporarily  deprived 
in  whole  or  in  part  of  the  use  or  power  which  he 
possesses,  either  by  reason  of  his  order,  or  of  his  of- 
fice or  of  his  benefice  or  income."  Suspension  may 
be  from  office  only  or  from  office  and  benefice.  The 
later  is  a  total  suspension.  But  when  it  is  from 
either  or  from  some  act  pertaining-  to  either,  it  is 
called  partial.  Thus  suspension  may  be  ah  ordine 
and  still  a  priest  retains  jurisdiction.  Ag'ain  it  may 
be  from  one  or  another  act  of  order  or  of  jurisdiction. 
Hence  in  passing"  sentence  or  declaring-  the  censure, 
the  judg-e  must  be  careful  to  specify  the  extent  of  the 
suspension.  Suspension  from  benefice  deprives  the 
incumbent  only  of  the  fruits  and  the  administration 
of  the  benefice,  but  not  of  the  title  to  it.  An  admin- 
istrator must  in  such  case  be  appointed. 

4%.  For  inflicting- suspension  as  a  censure,  the  ad- 
monition and  the  precept,  or  two  canonical  warning-s, 
and  in  either  case  the  trial,  are  required;  but  when  it 
is  inflicted  as  a  vindicative  punishment  only  the  trial 
need  proceed.  If  the  suspension  is  laid  down  in  the 
law  and  incurred  ipso  facto,  a  citation  to  show  cause 
why  it  should  not  be  published  is  all  that  is  required 
before  the  declaratory  sentence.  One  exception  is 
made  for  occult  crimes  by  the  council  of  Trent,  which 
allows  bishops,  not  their  vicars  g-eneral,  to  suspend 
clerics  from  office,  not  from  benefice,  by  the  extraor- 

57 


442        -^  IvKGAIv   FORMULARY. 

dinary  procedure  called  ex  informata  conscientia^ 
without  any  admonition  or  trial  preceding*.  A  priest 
thus  suspended  from  the  cure  of  souls  retains  pos- 
session of  his  parish,  but  must  supply  a  reasonable 
support  for  a  vicar,  to  be  in  this  case  appointed  by 
the  bishop.  No  appeal  lies  ag^ainst  a  suspension  ex 
inforinata  coiiscientia,  but  only  a  recourse  to  the 
Holy  See  or  with  us  also  to  the  Apostolic  Deleg'ation. 

497.  Following-  is  a  form  for  suspension  ex  in- 
/oi'mata  conscientia, 

"It  being-  known  to  Us  that  Rev.  N.,  a  priest,  is 
g-uilty  of  crime,  for  reasons  which  rig-htly  deter- 
mine Us  and  for  which  we  are  ready  to  g-ive  an  ac- 
count to  God  and  the  Holy  See  when  required,  b}^ 
virtue  of  the  faculty  g-ranted  by  the  S.  Council  of 
Trent,  sess.  14,  c.  1,  de  ref.  and  ex  informata  consci- 
e7itia.  We  suspend  a  divinis  for  six  months  the  said 
priest.  Rev.  N.,  and  declare  him  suspended  and 
order  the  decree  of  suspension  served  on  him. 
Given  &c. 

[iv.  s.]  N.  Bishop  of  N. 

N.  Actuary." 

498.  Following-  is  a  form  for  declaring-  a  suspen- 
sion incurred  ipso  facto  in  "Apostolicae  Sedis,"  n.  2, 
after  a  citation  to  the  delinquent  to  show  cause  why 
declaratory  sentence  should  not  be  passed.  In  this 
case  the  bishop  has  jurisdiction  also  over  reg-ulars: 

"Considering-  the  recourse  of  Rev.  N.,  rector  of 
N — ,  and  the  report  of  our  fiscal  procurator,  and  in- 
formation being-  had  from  which  it  is  certain  that 
Rev.  X.  assisted  at  and  blessed  the  marriag-e  of  N. 
and  N.  who  are  parishioners  of  N.,  and  considering- 
that  Rev.  X.  did  this  without  any  permission  of 
Rev.  N.,  the  pastor  of  N.  and  N.;  considering* 
further  that  the  Rev.   X.  being-  cited  and  warned  to 


DECREE   OF   SUSPENSION.  443 

show  cause  why  he  should  not  be  declared  sus- 
pended did  not  produce  anything*-  to  relieve  him,  We 
say  and  declare  that  the  said  Rev.  X.  according-  to 
sess.  25,  c.  14  de  ref.  of  the  council  of  Trent,  is  sus- 
pended and  We  wish  and  declare  him  suspended  and 
order  his  suspension  published  b}'  affixino-  a  decree 
to  the  doors  of  the  parish  church.  This  and  every 
other  best  way.     Given  &c. 

[h.  S.]  N.  Bishop  (or)  Vicar  General  of  N. 

N.  Actuary." 

499.  Following-  is  a  form  for  declaring-  a  suspen- 
sion which  is  laid  down  in  law  but  is  ferendce  sen- 
ie7iticB,  and  is  found  in  Cap.  Episcopus  35  distinctio. 
A  similar  form  may  be  used  for  others  of  the  same 
kind: 

"Considering-  the  instance  of  the  fiscal  procurator 
and  the  information  taken  on  both  sides,  from  which 
it  is  certain  that  N.  N.,  a  priest  w^ho  is  accustomed 
to  play  at  cards,  has  not  obe3^ed  the  admonition  and 
precept  g-iven  him  to  abstain  from  such  play  under 
pain  of  suspension;  considering-  that  he  is  g-iven  to 
such  play  even  with  laics  and  also  in  public  houses, 
we  hereby  in  virtue  of  Cap.  E^piscopus  35  Dist.  sus- 
pend him  a  divinis  for  three  months  and  declare  and 
denounce  him  suspended  therefrom  and  order  the 
suspension  served  upon  him.  Given  &c. 
[l.  s.]  N.  Vicar  General. 

N.  Actuary." 

The  above  form  is  practically  a  definitive  sentence 
after  trial,  and  is  sufficient,  thoug-h  less  formal  than 
the  forms  g-iven  in  n.  420-432.  Being-  a  definitive 
sentence  the  usual  formalities  are  required  in  g-iving- 
it. 

500.  A  bishop  for  a  reasonable  cause,  which  is  to 
be  manifested  to  the  Holy  See  when  it  requires  it. 


444  LEGALpFORMULARY. 

can  suspend  regfulars  from  hearing"  confessions,  even 
after  he  has  approved  them.  No  trial  of  any  kind  is 
required.  Follov^ing-  is  a  form  under  the  Const,  of 
Clement  X,  Sufcrna: 

"Considering-  that  Pr.  X.  of  the  order  of  N.  and 
the  convent  of  Y.  does  not  observe  the  conditions 
and  monitions  prescribed  and  enjoined  on  him  in  the 
approbation  given  him  by  us  to  hear  confessions,  and 
for  other  reasons  known  to  us  and  determining-  our 
judg-ment,  we  hereby  revoke  the  aforesaid  faculty 
and  suspend  him  from  hearing-  confessions,  and  de- 
clare him  suspended  therefrom  and  order  the  suspen- 
sion served  upon  him.  Given  this  &c. 
[l.  s.]  N.  Bishop  of  N. 

N.  Actuary." 

501.  While  a  judg-e  in  inflicting-  censures  is  oblig-ed 
to  follow  the  prescribed  form  of  "Cum  mag-nopere" 
and  after  canonical  warning-  put  the  censure  in  writ- 
ing- with  a  statement  of  the  reason,  still  this  holds 
only  when  the  judg-e  suspends  from  some  act  which 
belong-s  to  the  suspended  person  in  his  own  rig-ht. 
But  when  the  judg-e  suspends  from  an  act  which 
comes  to  the  suspended  person  only  from  the  com- 
mission of  the  judg-e  himself,  then  the  judg-e  neither 
sins  nor  incurs  the  penalty  if  he  omits  these  solemni- 
ties. Thus  a  simple  priest  who  has  not  the  care  of 
souls  and  who  cannot  hear  confessions  jure  suo,  can 
be  suspended  from  that  act  without  warning-  and 
without  writing-;  because  such  a  suspension  or  with- 
drawal is  really  no  suspension  and  no  censure,  but  an 
inhibition  and  a  revocation  of  the  concession  formerly 
g-iven.  Wherefore  as  the  bishop  could  commission 
him  verbally  so  he  can  verbally  revoke  the  commis- 
sion.    But  on   the  other  hand,  if  a  bishop  or  judg-e 


DECREE   OE    INTERDICT.  445 

should  suspend  from  hearing-  confessions  a  parish 
priest  or  one  having*  charg^e  of  souls,  without  putting- 
it  in  writing"  and  stating*  the  cause,  he  would  sin 
g-rievously  and  fall  under  the  punishment  decreed  in 
c.  viedicinalis  de  sent,  excom.  in  6°,  i.  e.  he  would 
be  oblig-ed  to  pay  all  expenses  and  interest  thereon 
to  the  censured  person  and  suffer  other  punishment, 
because  in  this  case  the  hearing-  confessions  belong-s 
jtire  suo  to  the  priest  having-  charg-e  of  souls,  even 
if  he  is  only  a  vicar.  The  same  can  be  said  of  sa^^ing- 
mass,  which  jure  sno  belong-s  to  a  priest  having- 
charg-e  of  souls,  and  cannot  be  withdrawn  by  the 
bishop,  except  with  the  formalties  required  by 
the  "Cum  mag-nopere"  for  the  infliction  of  censures 
or  punishment.  i^Cf.  Sayr,  de  cens.  I.  4.,  c.  2,  n.  18 ; 
Monacelli,  -p.  j,  t.  2,/.  11,  71.  g.) 

For  this  reason,  also,  the  so-called  "withdrawal 
of  faculties"  cannot  be  understood  as  a  canonical 
term  when  there  is  question  of  priests  who  have 
charg-e  of  souls,  even  as  vicars.  When  once  ap- 
pointed their  rig^ht  to  say  mass  depends  on  their 
position,  not  on  the  mere  will  of  the  bishop,  and  this 
rig-ht  can  be  limited  only  by  censure  or  punishment 
canonically  inflicted.  Moreover,  since  the  expres- 
sion "withdrawal  of  faculties"  is  uncanonical,  vag-ue 
and  ineffectual,  it  seems  that  a  priest  having-  charg;e 
of  souls  who  is  inflicted  b}^  such  a  terra,  may  ig-nore 
it  with  impunity.  There  are  canonical  terms  which 
the  judg-e  can  use  easily  and  effectively. 

502.  An  interdict  is  a  correctional  punishment  by 
which  in  punishment  of  crime  the  public  celebration 
of  divine  service,  the  administration  of  certain  sacra- 
ments and   ecclesiastical  burial  are  forbidden  in  cer- 


446  IvEGAL    FORMULARY. 

tain  places  and  to  certain  persons.  Interdicts  in  the 
comprehensive  sense  of  former  times  have  g"one  out 
of  use.  Interdicts  are  local  and  personal.  They 
are  inflicted  only  for  g^rave  crime,  in  which  the  whole 
community  or  a  majority  of  it  is  implicated.  The 
usual  formalities  required  for  censures  are  necessary 
in  inflicting  an  interdict. 

503.  Following"  is  a  form  for  declaring"  an  interdict: 

"Considering-  the  report  of  the  excess  of  B.,  a 
publicly  excommunicated  person  and  information 
being-  had  from  which  it  is  certain  that  he  was  pub- 
licly present  at  divine  service  in  the  church  of  X.  on 

the  feast   of   and    was   admitted  to    the  Holy 

E^ucharist;  we  hereby  subject  to  ecclesiastical  inter- 
dict the  aforesaid  church  and  the  priests  N.  and  N. 
who  temerariously  received  and  admitted  him,  and 
we  wish  and  declare  them  subject  to  interdict  and 
order  that  they  be  publicly  denounced.  Omni  mel- 
iori  modo.     Given  &c. 

[iv.  s.]  N.  Bishop  of  N.,  (or)  Vicar  General. 

N.  Actuary." 

504.  The  interdict  may  be  thus  published: 

"By  our  ordinary  authority  the  church  of  X.  is 
declared  and  announced  to  be  under  ecclesiastical 
interdict,  and  N.  and  N.,  officials  of  the  same  church 
are  declared  subject  to  the  same  interdict  from  en- 
tering- the  church,  for  the  reason  that  they  temer- 
ariously dared  to  receive  and  admit  to  the  divine 
offices  and  participation  in  the  sacraments  on  the  last 

feast  day  of  B.  who  is  publicly  and.  notoriously 

excommunicated.     Given  &c. 

[iv.  s.]  N.  Bishop  of  N.,  (or)  Vicar  General. 

N.  Actuary. 


)> 


CHAPTER  XXL 

APPEAI^   AND   REtvEASE   FROM  CENSURES. 

505.  It  is  allowed  to  appeal  against  all  censures, 
no  less  than  ag"ainst  other  punishments.  As  a  rule 
appeals  from  vindicatory  punishments  produce  a 
suspensive  effect,  for  the  decree  of  execution  is 
estopped.  But  since  a  censure  executes  itself,  when 
it  has  already  been  inflicted,  ordinaril}^  an  appeal 
produces  only  a  devolutive  effect.  However,  if  the 
censure  has  also  temporal  as  well  as  spiritual  effects, 
the  common  teaching"  of  canonists  is  that  an  appeal 
has  also  a  suspensive  effect.  Thus  from  a  suspen- 
sion a  beneficio  a  suspensive  appeal  may  be  taken. 
(C/.  Smalzgriieber,  I.  2,  /.  28,  n.  2^;  Boitix,  de  Jitd. 
II.  f).  255/  Stremler,  -pg-.  255;  Cap.  20  de  sent.  exc. 
in  6° ;  Glossa  ibidem.) 

506.  A  suspension,  which  is  a  vindicatory  punish- 
ment, not  merely  a  censure,  can  be  appealed  ag^ainst 
in  suspensivo  like  any  other  punishment.  {St.  Lig"- 
ouri,  I.  7,  n.  314;  Kober,  Suspension,  pg.  8j  et  alii.) 
An  appeal  even  ag'ainst  a  purely  spiritual  censure 
has  a  suspensive  effect,  if  the  cause  assig'ned  is  null- 
ity. {Ad  milita)itis  )i.  j6.)  An  appeal  ag-ainst  the 
declaration,  made  or  even  threatened,  of  a  censure  a 
jure  et  latce  sentcjiticB  has  a  suspensive  effect.  An 
appeal  made  ag-ainst  the  proposed  publication  of  a 
censure  ab  lioniine  is  held  to-day  to  have  a  suspen- 
sive effect.     (Cf.    Smith  Elem.   n.  jo^o-jo^j.)     An 

447 


448  LEGAIv   FORMULARY. 

appeal  against  a  threatened  CQw^nre  has  surelv  a  sus- 
pensive effect,  and  if  the  judg*e  nevertheless  declares 
the  censure,  it  may  be  ignored  with  impunity.  This 
holds  true  even  if  the  higher  judge  after  seeing  the 
acts  rejects  the  appeal.  {Pierajztonelli,  Praxis,  t. 
<5,  n.  jg\  Smith  Eleni,  7i,  jojo.  et  alii  conununiter.) 
After  the  appeal  has  been  rejected  by  the  higher 
court,  the  threat  should  be  renewed  b}^  the  lower 
judge  in  order  to  be  effective.     {Covummis  DD.) 

507.  When  an  appeal  is  made  to  the  metropolitan 
against  a  censure,  he  thereby  obtains  jurisdiction  to 
re-examine  the  whole  case,  and  to  confirm  or  revoke 
the  censures  inflicted.  Meanwhile  the  sentence  can- 
not be  executed  by  the  judge  a  quo,  and  the  metro- 
politan may  after  warning  inflict  censures  on  the 
vicar  general  of  a  suffragan  who  in  such  circum- 
stances attempts  to  execute  the  sentence.  The  ap- 
peal may  come  either  on  the  plea  of  unjustness  or  on 
that  of  invalidity  in  the  censure. 

-  If  the  reason  alleged  is  injustice,  theu  the  metro- 
politan must  first  see  the  acts  of  the  lower  court  and 
hear  the  parties,  before  he  relaxes  the  censure. 
The  procedure  in  the  metropolitan  court  on  appeal  is 
the  "Cum  magnopere"  as  in  the  lower  court.  If 
the  metropolitan  finds  the  censure  unjust  he  himself 
will  at  once  revoke  it  and  declare  it  invalid.  If  he 
finds  it  just  he  will  send  the  appellant  back  to  the 
lower  court  for  absolution,  and  if  the  suffragan 
bishop  refuses  to  absolve  from  the  censure  when  re- 
quested by  appellant,  then  the  metropolitan  will 
absolve.  In  case  the  metropolitan  finds  it  doubtful 
whether  the  censure  is  just  or  not,  he  himself  may 
grant  absolution,  but  to-day  it  is  the  rule  to  send  the 


APPEAL  FROM  CENSURES.  449 

appellant  back  to  the  lower  court  with  a  mandate 
that  he  be  absolved  within  a  brief  time  stated  in  the 
mandate.  When  a  censure  has  been  unjustly  in- 
flicted, the  metropolitan  is  oblig^ed  to  order  the  lower 
^'udg^e  to  completely  indemnify  the  appellant,  unless 
the  judgfe  can  show  he  acted  from  error  depending" 
on  some  one  else,  but  not  from  ignorance.  The  pre- 
sumption is  always  against   the  judg'e  in  such  cases. 

508.  When  the  reason  alleged  in  the  appeal  is 
invalidity,  the  invalidity  is  either  certain  or  doubt- 
ful. If  certain,  and  notoriously  invalid,  then  no 
appeal  need  be  taken.  Still  with  us  it  is  safer  to  have 
the  invalidity  declared  by  the  higher  court  on  appeal 
ex  capite  nullitatis.  Meantime  the  censure  need  not 
be  recognized  in  either  forum.  But  if  the  invalidity 
is  doubtful  the  metropolitan  when  an  appeal  is  made, 
should  first  of  all  examine  the  acts  in  a  sinuniary 
way  and  having  cited  the  lower  judge,  should  before 
he  hears  the  case  on  its  merits  grant  absolution  from 
the  censure  ad  caiitelam.  He  then  hears  the  case  on 
its  merits,  according  to  "Cum  magnopere"  and  in 
his  definitive  sentence  either  sustains  the  censure  and 
then  it  ipso  facto  revives,  or  he  reverses  the  lower 
court  and  the  absolution  from  the  censure  becomes 
absolute. 

509.  The  absolution  ad  cautelam,  when  the  appeal 
is  because  of  invalidity,  must  always  be  ordered 
immediately  by  the  metropolitan,  except  the  judge 
a  quo  offers  to  show  within  eight  days  that  the  cen- 
sure was  justly  imposed  for  a  iiotorious  crime  or  for 
notorious  contumacy.  Then  the  metropolitan  ma}^ 
wait  eight  da3^s.  But  if  the  judg-e  a  <7//o  does  not 
prove  his  assertion,   the  absolutiou  is  to  be  given  ad 

58 


450  IvEGAL   FORMULARY. 

caiUelcuji.  The  bishop  a  quo  is  also  oblig-ed  to  show 
that  he  properly  cited  the  alleg'ed  contumacious  per- 
son, not  only  peremptorily  to  the  trial,  but  also  by  a 
second  warning  or  citation  to  show  cause  before  the 
censure  was  inflicted  or  declared.  {Cf.  Pieranton- 
elli^  Praxis^  t.  6,  n.  ly-ig',  also  n.  jj^  above.)  If 
the  -judg-e  a  quo  makes  the  required  showing-,  then 
before  absolution  ad  catitelavi  is  g^iven,  the  metro- 
politan must  require  from  the  appellant  that  he  make 
due  satisfaction  to  the  lower  court,  that,  if  he  be 
contumacious,  he  pay  the  costs  of  the  lower  court, 
that  in  token  of  submission  he  present  himself  to  his 
superior  by  whom  he  was  censured,  that  he  sincerely 
promise  to  obey  the  laws  of  the  church  for  the 
future.  After  this  is  done,  the  metropolitan  will 
send  him  for  the  absolution  ad  cautelani  to  the  judge 
a  quo  w^ith  an  order  that  the  absolution  be  given 
within  three  days.  If  the  judge  a  quo  refuses,  the 
metropolitan  will  give  it  himself.  Then  the  merits 
of  the  case  are  considered  in  regular  form.  E^ven 
when  the  invalidity  is  doubtful,  if  the  appeal  was 
taken  for  that  reason,  the  appellant  need  not  observe 
the  censure  in  either  forum. 

510.  An  appeal  from  a  threatened  censure  has  a 
suspensive  effect.  The  same  is  the  case  if  the  judge 
a  quo  who  threatened  censure  was  challenged  before 
he  inflicted  censure.  In  these  cases  the  metropolitan 
will  decide  only  after  a  full  re-hearing  on  the  merits 
of  the  case. 

A  censure  is  invalid  when  one  essential  formality 
has  been  omitted  in  inflicting  it.  It  is  unjust  if  there 
is  no  cause  or  not  sufficient  cause  for  the  censure  in 
question.     It  is  both  valid  and  just  when  inflicted 


REMOVING    CENSURES.  451 

for  sufficient  cause  and  with  all  the  required  for- 
malities. When  a  censure  has  been  validly  inflicted, 
even  if  unjust,  it  must  be  observed  in  foro  externa, 
thoug"h  if  certainly  unjust  it  may  be  disregfarded 
i7i  foro  intern o.  A  censure  is  invalid,  if  the  superior 
exceeds  his  jurisdiction,  if  he  himself  is  under  cen- 
sure, if  the  defendant  has  appealed  before  the  cen- 
sure v^as  actually  inflicted,  if  the  superior  imposes  a 
censure  on  one  not  his  subject.  Aorain  it  is  ipso  jure 
invalid  if  an  essential  formality  has  been 
neglected,  if  the  judofe  neg^lects  the  two  or  at  least 
one  peremptory  monition,  if  he  does  not  g^ive  the  ac- 
cused a  trial,  if  in  the  trial  he  leaves  out  some  essen- 
tial formality,  such  as  the  citation  of  the  accused  to 
defend  himself.  Finally  the  censure  is  ipso  jure  in- 
valid if  inflicted  without  a  sufficient  cause  or  crime 
juridically  established.  Hence  no  censure  can  be 
inflicted  on  mere  private  information,  nor  even  on  the 
information  obtained  in  the  summary  investig^ation 
before  preventive  remedies,  because  that  information 
is  not  yet  juridical,  since  the  accused  has  not  been 
cited  nor  beard. 

511.  However,  after  the  informative  process  of  a 
judicial  trial  has  been  completed  and  a  X^^^'dX  proof  of 
g*uilt  has  been  obtained,  the  judg-e,  either  just  before 
or  after  the  citation  is  g-iven  the  accused,  may  some- 
times order  him  to  retire  provisionally  into  a  monas- 
tery or  other  suitable  place  during*  the  time  the  trial 
g'oes  on.  This  is  equivalent  to  incarceration,  and  is 
considered  a  very  severe  punishment,  and  indeed  an 
irreparable  damag*e.  Therefore  it  cannot  be  inflicted 
by  the  auditor  or  judg-e  except  where  there  are  al- 
ready  on  hand  leg'al   proofs  of  g*uilt   obtained  judi- 


452  LEGAL    FORMULARY. 

daily,  not  extrajudicially,  and  when  also  the  crime 
in  question  is  very  ^rave,  atrocious  and  causing-  g-reat 
scandal,  so  that  the  accused  cannot  continue  to  exer- 
cise the  sacred  ministry  -piihlicly  and  in  the  midst  of 
those  among'  whom  his  offense  is  known  without 
g-rave  scandal  and  injury  to  relig^ion.  A  judg-e  who 
orders  incarceration  without  these  circumstances 
renders  himself  liable  for  heavy  damag^es.  Such  in- 
carceration does  not  necessarily  entail  suspension. 
{Cf.  PellegTimis,  part  4,  sec.  8,  n.  14.-1^.) 

512.  The  wilful  violation  of  a  valid  and  just  cen- 
sure is  a  mortal  sin  and  entails  irreg*ularity,  which 
is  a  disqualification  to  receive  orders  or  to  perform 
the  functions  of  orders  already  received.  Irreg^u- 
larity  ensues  only  for  violation  of  suspension  from 
order,  ab  ordine.  It  is  incurred  ipso  facto  and  is  re- 
served to  the  Pope.  It  is  not  incurred  for  violating* 
an  invalid  censure,  nor  one  yiotoriously  unjust,  which 
really  is  equivalent  to  an  invalid  one.  Besides  irreg-- 
ularity,  privation  and  even  deposition  from  all  offices 
and  benefices  may  be  inflicted  after  canonical  warn- 
ing's on  those  who  obstinately  disreg*ard  correctional 
punishments  or  censures,  when  the  suspension  is  ah 
ordine  and  acts  of  ordo  are  performed.  If  acts  of 
jurisdiction  are  performed  during*  a  suspension  from 
them,  the  acts  are  null  and  void,  and  other  punish- 
ments may  be  imposed  after  monition  as  the  judg'- 
ment  of  the  superior  determines. 

513.  In  order  that  a  censure  may  cease,  a  formal 
remission  or  absolution  by  the  ecclesiastical  superior 
is  necessary.  As  soon  as  the  delinquent  has 
amended  he  has  the  rig-ht  to  absolution  and  the  judg^e 
is  bound  to  g^rant  it  from  censures — not  from  vindic- 


ABSOLUTION    PROM   CENSURES.  453 

atory  punishment.  If  the  superior  by  whom  a  pun- 
ishment was  imposed  for  a  certain  time  sees  fit  to 
shorten  it,  he  may  do  so.  E^ven  vindicatory  punish- 
ments may  be  remitted,  unless  scandal  is  too  "^reat. 
(C/.  Kobe)',  Siispe)isio}i,  p.  128;  Drostc-Mcssme)\ 
f>§'.  112;  Sang^tiineti,  Inst.  f>g:  4.00,  4^g:  S/nilic,  2, 
-pg.  jSy,)  When  censures  are  incurred  a  jure  et  ipso 
facto,  and  not  reserved,  every  confessor  may  absolve 
from  them  .also  in  foro  externo.  When  these  cen- 
sures are  reserved,  then  only  the  lawgiver,  his  suc- 
cessor or  his  deleg"ate  can  absolve.  When,  however, 
censures  are  ah  homine  throug"h  a  special  sentence, 
which  applies  also  to  censures  a  jnre  ferendcc  seji- 
tentice,  then  only  the  superior  who  inflicted  them, 
his  successor  or  deleg'ate,  or  his  hio-her  superior  and 
no  one  else  can  remit  them.  Such  censures  follow 
the  delinquent  even  out  of  his  diocese. 

514.  A  person  under  censure  may  be  released 
absolutely,  which  is  usually  the  case.  Ag-ain  abso- 
lution from  censures  is  frequently  given  ad  caidelani 
in  the  exercise  of  voluntary  jurisdiction,  as  in  the 
sacrament  of  penance,  in  granting*  dispensations, 
before  conferring  offices  or  benefices.  It  is  also  given 
ad  cautelam  in  contentious  matters,  when  it  is  doubt- 
ful whether  or  not  a  censure  is  valid,  or  again  in 
order  to  give  a  witness  or  litigant  standing  in  court 
for  a  certain  case.  Sometimes,  as  in  danger  of 
death,  absolution  is  granted  under  the  condition  of 
re-incidence,  or  revival  of  it.  Before  absolution  is 
granted  from  censures,  the  person  under  censure 
must  ask  personally  to  have  it  removed  and  should, 
if  required,  give  satisfaction  to  the  injured  party 
and  repair  the  scandal   given  if   it  be  possible.     Be- 


454  LEGAL    FORMULARY. 

fore  absolviag-,  the  superior  should  obtain  sure  in- 
formation that  the  delinquent  has  really  receded 
from  his  obstinacy.  Whenever  the  censure  has  been 
officially  published  the  absolution  must  be  g-iven  in 
foro  cxterno,  the  formula  of  the  Roman  Ritual 
{Tit.  de  Sac.  Poen.)  being-  used  from  propriety,  but 
not  from  necessity  for  validity.  Forms  for  absolu- 
tion were  g^iven  in  n.  367  above. 

515.  The  forms  for  presenting  an  appeal  to  the 
metropolitan  court  and  for  recording"  it  are  given  in 
n.  448-453  above.  The  following-  form  may  also  be 
used  by  the  appellant: 

"To  the  Metropolitan  Curia  of  N. 

Comes  now  the  undersig-ned  appellant  before  the 
Most  Reverend  Metropolitan  and  shows  that  he  is  a 
priest  of  the  diocese  of  N.,  which  is  suffrag-an  to  this 
metropolitan  curia;  that  on  the  —  day  of  —  A.,  D.  — , 
he  was  grievously  injured  by  a  sentence  passed  upon 
him  by  the  V.  Rev.  Vicar  general  of  N.  — ;  that, 
therefore,  using-  his  rig-ht,  he  appealed  and  does  ap- 
peal to  this  metropolitan  curia  for  relief  from  the 
said  censure  which  is  of  the  following-  tenor:  (give 
censure  exactly  in  full.)  And  the  said  appellant 
says  and  shows  that  this  aforementioned  censure  is 
invalid  because  1°  no  canonical  warning  was  g-iven 
him  previous  to  the  infliction  of  the  censure,  2""  no 
trial  preceded  the  censure.  Wherefore,  the  said 
appellant,  your  orator,  asks  the  aid  of  this  metropol- 
itan curiaand  aninhibition  tothe  V.  Rev.  Vicargeneral 
of  N.  — ,  prohibiting  him  from  proceeding  further  in 
the  matter  of  this  said  censure,  and  he  asks  the 
further  aid  of  this  metropolitan  curia  for  the  revo- 
cation of  the  said  invalid  censure,  and  the  final  ad- 
judication of  the  whole  cause  therewith  connected. 
Further  your  orator,  this  appellant,  asks  that  he  be 
given   his  entire  costs  and   interest,    as  by  law  re- 


APPEAL  FROM  CENSURE:  455 

quired,  for  this  most  g^rievous  damag^e  thus  illegally 
and  unwarrantedly  inflicted  and  sustained.  This 
and  every  other  best  way,  by  law,  custom  or  statute 
your  orator  will  ever  pray.     Dated  &c. 

Sio-ned:  N.  N.  Appellant." 

516.  Following-  is  a  form  for  remitting"  the  appel- 
lant to  the  judg-e  a  quo  with  a  mandate  for  absolu- 
tion ad  caittelani  from  the  censure: 

"We,  vicar  g^eneral  of  the  archdiocese  of  X.  and 
judg-e  of  appeals  from  the  diocese  of  N.;  considering- 
the  appeal  of  Rev.  N.  of  the  diocese  of  N.,  against  a 
censure    inflicted  on   him  by  the  V.   Rev.  Vicar  g'en- 

eral  of   N.  and   dated  ;  considering-  the   plea  of 

invalidity  made  by  said  appellant;  having-  seen  the 
acts  and  the  opposing-  party  being-  cited,  in  accord- 
ance with  the  constitution  "Ad  militantis,"  n.  37, 
we  hereby  remit  the  said  appellant.  Rev.  N.,  to  the 
aforesaid  V.  Rev.  Vicar  gfeneral,  or  ordinary  of  N. 
in  order  that  within  three  days  the  said  ordinary  of 
N.  may  g-rant  the  said  Rev.  N.  absolution  ad  caute- 
lam  from  the  said  censure;  and  we  so  have  ordered 
in  this  and  every  other  best  way.     Given  &c. 

N.  Vicar  General  of  the  Arch-diocese  of  X. 
[iv.  s.]  N.  Actuary." 

517.  Should  the  vicar  g-eneral  of  a  suffrag-an 
bishop,  in  spite  of  inhibitions,  proceed  to  execute  a 
censure,  or  other  sentence  from  which  an  appeal  has 
been  taken,  the  metropolitan  may  punish  him  even 
b}^  excommunication  after  proper  warning  and  cita- 
tion. {Cf.  cap.  /,  dc  off.  ricar.  iii  6"" .)  This  is  also 
true,  even  for  the  first  instance,  when  the  vicar  g-en- 
eral is  g-uilty  of  faults  in  his  official  capacit3\ 
{S.  C.  Cone.  25  Feb.  16^2.)  The  complaint  may  be 
made  either  bv  the  fiscal  procurator  or  bv  anv  sub- 
ject  of  the  suffrag-an  bishop.     In  such  cases  the  arch- 


456  ^       LEiGAL    FORMUI^ARY. 

bishop  himself  should  sign  the  acts  of  the  process, 
not  his  vicar  g-eneral,  in  order  that  there  may  be  no 
question  of  nullity  in  the  process.  If  the  offending" 
vicar  general  appears  personally  or -by  procurator 
and  gives  reasons  why  he  should  not  be  punished  he 
should  be  heard.  If  he  pleads  guilty  but  begs  par- 
don and  promises  to  act  rightly  for  the  future,  when 
satisfaction  is  made  to  the  offending  party,  and  his 
xvritten  promise  is  filed  in  the  metropolitan  chancery 
he  should  be  pardoned  provided  he  is  not  a  recidivus. 
[Cf.  Monacelli,  -p.  j,  t.  /,  /.  j2,  n.  y,) 

518.  The  following  form  may  be  used  for  citing 
the  delinquent  vicar  general.  The  service  of  the 
citation  must  be  proved  as  usual: 

"Let  the  vicar  general  of  N.,  the  V.  Rev.  N.  N. 
be  cited  and  admonished,  through  a  messenger  (also 
registered  letter  'Cum  magn.'  art.  14)  personally  if 
he  can  be  found,  otherwise  by  a  copy  left  at  his 
place  of  usual  residence  or  affixed  to  the  door  of  the 
cathedral  of  N.,  and  he  is  hereby  cited  and  admon- 
ished, to  appear  before  Us  within  the  (peremptory) 

term  of  days  to  show  cause  and  make  answer 

why  he  should  not  be  punished  by  excommunication 
as  in  cap.  1,  de  off.  vicar,  in  6°,  because  of  his  action 
in  attempting  to  execute  a  censure  (or  sentence)  im- 
posed on  Rev.  N.  N.  after  the  said  Rev.  N.  N.  had 
appealed  and  the  said  V.  Rev.  Vicar  general  had 
been  inhibited  from  proceeding  further.  Given  &c. 
[l.  s.]  N.  Archbishop  of  N. 

N.  Actuary." 

519.  Following  is  a  form  for  the  decree  to  be 
issued  by  the  archbishop  after  the  usual  (see  n.  334) 
warnings  have  been  given  to  the  delinquent  vicar 
general: 

"Considering  the  acts  and  proofs  brought  before 


INHIBITING    LOWER   COURT.  457 

Us,  from  which  it  is  certain  that  the  appeal  which 
N.  interposed  before  our  tribunal  within  the  proper 
time  from  a  judicial  decree  (or  a  sentence  having  the 
force  of  a  definitive)  passed  by  the  V.  Rev.  N.  vicar 
g^eneralof  the  Bishop  of  N.,  our  suifratran,  in  a  cause 
tried  between  the  appellant  on  one  side  and  X.  on 
the  other  (or  state  cause),  which  appeal-was  rejected 
by  the  said  V.  Rev.  Vicar  g-eneral;  considering  the 
execution  of  the  aforesaid  decree  (or  sentence)  not- 
withstanding our  inhibition;  considering^-  the  warn- 
ing's g"iven  and  executed  with  the  peremptory  term 
assigfned  to  the  said  vicar  g^eneral  to  appear  and 
show  cause  under  pain  of  excommunication;  consid- 
ering* his  contumacy;  We  say  and  declare  that  the 
said  vicar  g^eneral,  N.  N.,  has  been  grievously  dere- 
lict in  office  and  in  the  exercise  of  jurisdiction,  and 
has  offended  ag^ainst  archiepiscopal  and  metropolitan 
jurisdiction;  and  therefore  he  should  be  excommu- 
nicated, as  We  now  excommunicate  and  declare  him 
excommunicated.  Further  We  wish  and  order  that 
he  be  publicly  denounced  as  such  by  affixing*  placards 
both  in  this  our  city  and  in  the  city  of  N.,  with  the 
clause  that  those  who  remove,  tear  or  deface  these 
placards  shall,  even  if  they  be  regfulars,  incur  ipso 
facto  excommunication.  Given  at  &c. 
[l.  s.]  N.  Archbishop  of  N. 

N.  Actuary." 

520.    Following"  is  a  form  for  publishing*  such  an 
excommunication: 

"By  these<presents  with  our  ordinary  authority, 
N.  N.  the  vicar  g^eneral  and  official  of  the  Most  Rev. 
Bishop  of  N.,  our  suffrag-an,  is  denounced  and  de- 
clared excommunicated  by  excommunication  reserved 
to  Us;  because  he  would  not  admit  an  appeal  made 
to  Us  within  proper  time  from  his  appealable  decree 
(or  sentence,)  and  notwithstanding-  our  inhibition, 
nevertheless  with  damnable  presumption  proceeded 
further  in  the  case.  In  order  therefore  that  he  may 
59 


458  LEGAIv    FORMULARY. 

be  shunned  by  all  We  have  ordered  these  presents  to 
be  affixed  in  public  places  in  the  city,  and  he  will 
remain  excommunicated  until  he  shall  have  fully 
satisfied  our  jurisdiction  and  the  agig-rieved  party, 
and  shall  merit  to  be  absolved  by  Us.  But  all  those 
who  shall  tear  or  deface  these  placards,  even  if  they 
be  regfulars,  shall  incur  ipso  facto  excommunication. 
Given  &c.  N.  Archbishop  of  N. 

[l.  s.]  N.  Actuary." 

521.  In  criminal  matters  an  archbishop  to-day  has 
no  ordinary  jurisdiction  over  his  suffrag"an  bishops. 
But  he  still  retains  jurisdiction  in  civil  matters  when 
the  subject  of  a  suffrag*an  sues  his  bishop.  If  the 
bishop  bring-s  suit  ag-ainst   his  own  subject,  ayhitri 

juris  are  to  be  appointed,  for  the  archbishop  has  not 
immediate  jurisdiction  in  the  first  instance  over  the 
subjects  of  his  suffrag^ans,  and  therefore  he  cannot 
cite  such  a  subject.  The  bishop  cannot  act  for  he  is 
a  party  to  the  suit.  Hence  the  arhitri  juris.  But 
since  the  metropolitan  has  immediate  jurisdiction  in 
the  first  instance  over  his  suffragans,  the  subject  of 
a  bishop  may  file  his  bill  of  complaint  in  the  metro- 
politan curia,  and  the  archbishop  may  act  as  ordi- 
nary judge.  However,  no  citation,  according-  to  the 
council  of  Trent,  should  be  directed  to  the  bishop 
himself,  but  it  must  be  issued  to  the  bishop's  pro- 
curator. 

522.  That  an  archbishop  has  such  jurisdiction  in 
the  first  instance,  according  to  Monacelli,  has  been 
several  times  decided  by  the  S.  Cong,  of  the  Council, 
and  therefore  is  the  law  also  since  the  council  of 
Trent.  Decisions  were  made  in  1585  and  Nov.  10, 
1618,  and  the  point  decided  distinctly  in  a  Lima  case 
Feb.  1586.     (Cf.  Pallotini  Collection.) 


JURISDICTION    OVER    SUFFRAGANS.  459 

Following"  are  some  canonists  who  clearly  main- 
tain such  jurisdiction.  Monacelli,  T.  2,  t.  15,  f.  2 
n.  11;  Nicolinus,  Lucubr.  Can.  1.  2,  t.  2,  de  for 
comp.  2;  ^ecchius,  de  rep.  eccl.  tit.  de  stat.  Patr 
et  Arch;  Rice,  in  praxi,  par.  4,  resol.  4%;  Genuen 
in  praxi,  cap.  86,  n.  1;  Passer,  in  cap.  rom.  n.  4 
Pirhing-,  Jus  Can.  1.  1,  t.  31,  n.  14;  Piasc.  prax.  par 
2,  cap.  5,  art.  2;  Caput  1,  distinct  80  of  Corpus 
Juris;  cap.  Metrop.  45,  2,  q.  7;  Glossa  in  cap. 
pastoralis  de  off.  ord.  et  in  cap.  pervenit  39,  verb, 
interponere  11,  q.  1;  Abbas,  in  cap.  de  app.; 
DeAng-elis,  1.  1,  t.  31,  n.  17;  Reiffenstuel,  1.  1,  t.  31, 
n.  38;  E^ng-el,  de  maj.  et  obed.  n.  21;  Maschat,  tit. 
31,  n.  9;  Gallemart,  cap.  5;   Santi,  tit.  31,  n.  153. 

The  II  Council  of  Baltimore,  (n.81)  g-ives  room  for 
the  same  doctrine  when  it  uses  the  word  "fere"  in 
specifying-  some  points  of  metropolitan  jurisdiction. 
It  not  only  did  not  exclude  such  jurisdiction  but  b\' 
using-  the  word  "fere"  left  room  to  include  it  and 
whatever  else  the  common  law  and  teaching*  includes. 
But  it  is  also  true  that  on  Jan.  20,  1891,  the  S. 
Cong",  of  Propag-anda  to  whom  the  question  was  re- 
ferred on  appeal  replied:  "Considering-  the  peculiar 
circumstances,  since  it  is  controverted  among*  can- 
onists, this  S.  Cong*,  does  not  wish  to  decide  the 
question  by  its  sentence,  and  therefore  calls  the 
whole  case  to  itself."  Hence  practicalh^  the  best 
way  is  to  bring*  such  suit  throug*li  the  Propag*an(la 
direct  or  beg^in  it  in  the  Apostolic  Deleg^ation. 


CHAPTER  XXII. 

VINDICATORY  PUNISHMENTS:      FINES,    BANISPIMENT, 

IMPRISONMENT,    TRANSFER,    DISMISSAL,     LOSS 

OF   TITLE,    DEPOSITION,    DEGRADATION. 

523.  Vindicatory  punishment  is  intended  to  correct 
the  delinquent,  but  also  to  atone  for  crimes  and  de- 
ter others  from  committing"  them.  Vindicatory  pun- 
ishment can  be  inflicted  only  after  trial,  and  must  be 
proportionate  to  the  offense.  Regularly  an  inferior 
judge  can  neither  increase  nor  diminish  the  punish- 
ment laid  down  in  law.  Still  for  just  cause  he  may 
do  either.  The  punishment  may  be  increased  on  ac- 
count of  the  position  of  the  delinquent  and  the  greater 
scandal,  or  on  account  of  the  dignity  of  the  person 
offended.  Again  if  the  reason  for  offending  was 
weak  and  "the  deliberation  great,  or  if  the  offense 
has  become  habitual,  or  if  the  circumstances  are 
more  atrocious,  the  punishment  may  be  increased. 
On  the  other  hand  the  punishment  may  be  lessened 
if  the  delinquent  believes  he  is  not  sinning,  if  he 
commits  the  crime  in  anger  or  in  drunkenness. 
Again  children  and  the  aged  are  to  be  punished  less 
than  others.  Moreover,  the  eminence  or  nobility  of 
a  person  is  a  reason  of  law  why  less  severe  punish- 
ment is  exacted.  So  also  is  the  length  of  time  which 
has  elapsed  since  the  crime  was  committed.     When 

460 


FINES   AS   PUNISHMENT.  461 

the  law  or  statute  leaves  the  punishment  arbitrary, 
the  judo"e  must  keep  a  proportion  between  the  crime 
and  the  punishment,  which  may  be  determined  b}' 
comparing-  the  punishment  inflicted  by  law  for  other 
crimes  of  a  somewhat  similar  nature. 

524.  A  pecuniary  fine  is  the  payment  of  a  sum  of 
money  imposed  by  the  ecclesiastical  judo-e  in  foro 
extcrno  upon  a  person  in  punishment  of  a  crime  com- 
mitted by  him.  It  is  certain  that  fines  are  a  canon- 
ical punishment.  (C/.  Council  of  Trent ^  sess.  2j,  c. 
J,  de  ref.)  Hence  fines  may  be  imposed  as  punish- 
ments by  the  sentence  of  an  ecclesiastical  jud^e  after 
trial,  when  the  law  expressly  specifies  this  punish- 
ment, when  it  was  made  the  sanction  for  s3'nodal 
statutes,  or  when  the  assessing*  of  punishment  is  left 
to  the  judg-e.  Fines  rather  than  censures  should  be 
inflicted  for  contumac}^  {Coiin.  Trent,  I,  c.)  and 
whenever  the  offense  is  not  so  g^reat  as  to  deserve 
spiritual  punishments,  such  as  suspension,  removal 
and  the  like. 

525.  But  in  order  to  cut  off  all  abuse  in  the  collect- 
ing- of  fines,  the  same  council  enacted  that  neither 
the  bishop  nor  his  vicar  g-eneral  should  either  re- 
ceive or  appropriate  these  fines  to  his  own  use. 
Neither  can  these  fines  be  used  to  pa^''  the  salary  of 
the  bishop,  vicar  g-eneral,  chancellor  or  any  official, 
(except  the  defensor  of  the  marriag-e  bond,  according- 
to  Benedict  XIV,  "Dei  miser,"  n,  12);  nor  can  they 
be  applied  to  repairing-  church  building-s;  but  they 
must  g-o  entirely  for  pious  and  charitable  purposes, 
such  as  maintaining-  the  poor,  or  supporting-  asylums 
in  the  diocese.  An  excellent  use  would  be  the  nec- 
essary   support  of  clerg-ymen  under  censure  or  de- 


462  LEGAL   FORMULARY. 

prived  of  their  parishes;  for  these  ecclesiastics  are 
undoubtedly  entitled  to  what  is  necessary  for  their 
maintenance,  though  not  to  a  strict  competency.  . 

526.  The  bishop  cannot  act  as  treasurer  of  the 
moneys  collected  as  punishments;  neither  can  the 
vicar  g'eneral,  econome  or  other  official  of  the 
bishop's  house.  A  special  treasurer,  according  to 
numerous  decrees,  must  be  appointed.  He  should 
be  a  member  of  the  cathedral  chapter  and  must  give 
security  for  the  faithful  performance  of  his  duties. 
The  bishop  will  designate  the  pious  works  for  which 
the  money  thus  received  is  to  be  expended;  and  each 
year  the  treasurer  will  render  an  account  before  the 
ordinary  and  two  members  of  the  chapter,  one  to  be 
chosen  by  the  bishop,  the  other  by  the  chapter.  (S. 
C.  Ep.  20  Nov.  16^4.)  The  treasurer  for  fines  is 
really  to  act  as  treasurer,  and  the  ordinary  cannot 
hold  the  money.  (C/.  Ferraris,  Bibliotheca,  Pcena, 
art.  /,  n.  5/,  /j.)  He  may  very  properly  be  the 
treasurer  of  the  fund  for  infirm  priests. 

527.  Following  is  a  form  for  appointing  the  treas- 
urer of  fines: 

"N.  Bishop  of  N— .  To  &c.  Following  the  de- 
crees of  the  holy  council  of  Trent  and  the  Sacred 
Congregations,  and  wishing  to  obey  them,  in  order 
that  the  fines  and  pecuniary  punishments  which  may 
be  imposed  in  our  tribunal  for  crimes  and  satisfac- 
tion for  them,  may  rightly  be  applied  to  pious  uses 
or  places  in  our  city  or  diocese  according  to  our 
judgment;  We  by  these  presents  constitute  and 
depute  you,  in  whose  fidelity  and  probity  We  have 
confidence,  as  the  treasurer  of  the  said  fines  and 
punishments.  You  will  give  security,  to  be  filed  in 
our  chancery,  for  the  faithful  administration  of  your 


TREASURER    FOR    FINES.  463 

office  and  will  keep  a  book  showing-  the  amounts  re- 
ceived and  will  expend  said  moneys  only  on  our 
order  ^iven  expressly  in  writing-,  or  in  our  absence, 
on  the  order  of  our  vicar  g-eneral,  to  the  bottom  of 
which  order  you  will  have  placed  the  receipt  of  the 
person  to  whom  the  specified  amount  is  paid;  and  of 
your  administration  you  will  g"ive  an  account  each 
year  before  Us  and  two  members  of  the  chapter. 
Further  We  order  our  chancellor  and  econome  to 
have  nothing-  to  do  with  these  said  funds  or  fines; 
which  must  be  entirely  deposited  with  you.  These 
letters  are  to  be  reg-istered  in  the  chancery  and  to 
continue  in  force  during-  our  g"ood  pleasure.  Given 
at  —  this  —  day  of  —  A.  D.  — . 
[l.  s.]  "'  N.  Bishop  of  N. 

N.  Chancellor." 

528.  Imprisonment  is  a  canonical  punishment  for 
g-rave  crimes  proved  by  trial.  To-day,  especialh^  in 
the  United  States,  this  imprisonment  is  modified  to 
confinement  in  a  house  of  penance.  {Cf.  Stremler, 
fg:  6j:  III  Coun,  Bait,  n,  77.)  If  this  house  of 
penance  to  which  the  delinquent  is  condemed  for  a 
certain  time  is  outside  the  diocese,  a  mild  form  of 
exile  is  usually  connected  with  the  imprisonment  and 
specified  in  the  sentence.  E^xile  from  the  diocese  is 
a  canonical  punishment  for  g-rave  crimes  and  inflicted 
usually  to  break  up  scandal  and  take  the  delinquent 
out  of  the  occasion  of  crime.  For  this  purpose  also 
a  delinquent  may  be  ordered  to  keep  out  of  certain 
places  or  out  of  a  city  wnthin  the  diocese. 

529.  In  harmony  with  the  reason  underlying-  par- 
tial exile,  not  unfrequently  a  penal  transfer  is  in- 
flicted on  a  movable' rector  after  trial.  Whenever 
punishment  is  intended  or  can  be  interpreted  from 
the  circumstances,   then  a  movable  rector  is  entitled 


464  LEGAL    FORMULARY. 

to  a  trial  before  be  is  bound  by  such  transfer,  and 
pending-  the  trial  in  the  diocesan  curia  he  retains 
possession;  althoug^h  pending"  the  decision  of  the 
hig-her  court  to  which  he  made  recourse,  because  not 
g-iven  a  trial,  he  must  vacate  the  position  from  which 
he  was  decreed  transferred.  Still,  pending  the  de- 
cision of  the  higher  court  he  is  not  strictly  obliged 
to  accept  the  new  charge,  though  he  may  do  so  with- 
out forfeiting  any  rights.  {Cf.  n.  g2,  io6,  above; 
hist.  S.  Cong-.  Prop,  circa,  deer.  c.  Prov.  Bait.  /, 
ap.  Cojic.  Bait,  p§:  64..) 

530.  There  are  two  kinds  of  transfer,  one  penal, 
the  other  administrative.  Penal  transfer  always 
requires  a  previous  trial.  An  administrative  trans- 
fer of  a  movable  rector  may  be  made  for  necessity  or 
titiltity,  which  does  not  involve  crime.  Some  grave  rea- 
son is  required  by  law,  and  therefore  the  law  also 
implicitly  requires  that  this  g-rave  reason  be  showm 
on  recourse,  and  the  mere  assertion  of  the  superior 
has  no  weig^ht.  {Cf.  Leurenius^  For.  Ben.  p.  j,  g. 
(555 ;  DeAngelis,  I.  /,  t.  7,  n.  2.)  Neither  can  in- 
discreet conduct,  which  has  once  -been  punished,  be 
ag-ain  alleg^ed  as  a  grave  reason;  for  this  would  make 
it  a  penal  transfer,  and  further  no  one  can  be  pun- 
ished twice  for  the  same  offense.  (Rule  83  in  6°.) 
Moreover  the  transfer  must  necessarily  be  made  to  a 
better  or  at  least  to  an  equivalent  parish.  (C  /  et 
4  de  transl.  /,  7.)  If  made  to  an  inferior  parish,  even 
if  necessity  or  utility  is  pleaded  and  shown,  the 
higher  court  will  order  re-instatement.  This  is  es- 
pecially the  case  if  an  extrajudicial  cognitio  causes 
has  not  been  prepared  by  the  bishop  in  advance  of 
the  transfer;  for    then  the  presumption  is  that  the 


PENAL    TRANSFER.  465 

transfer  was  made  from  ill-will  and  malice.  {Can. 
y,'8,  dist.  7^.)  The  above  teaching  was  clearly  sus- 
tained in  a  Detroit  case  of  transfer,  decided  Aug-.  15, 
1896,  by  the  Apostolic  Delegate  who  on  recourse  de- 
cided "the  transfer  is  not  sustained"  and  ordered 
re-instatement.  A  form  for  letters  of  administrative 
transfer  is  given  in  n.  Ill  above. 

531.  It  is  certain  that  an  irremovable  rector  can- 
not be  transferred  against  his  will  except  for  canon- 
ical cause  and  after  trial  under  "Cum  magnopere." 
The  rectorship  undoubtedly  is  his  parish  and  a  trans- 
fer from  his  rectorship  is  a  deprivation  of  it,  no  mat- 
ter what  is  offered  in  exchange.  The  Third  Coun- 
cil of  Baltimore,  n.  38,  says  an  irremovable  rector 
cannot  be  removed  except  for  canonical  cause,  and 
it  specified  eight  new  causes  v^hich  thereby  it  made 
canonical  for  this  purpose.  Most  urgent  and  g-rave 
reasons  of  necessity  and  utility  are  alleged  by  a  few 
canonists  to  give  the  bishop  a  right  to  transfer  an 
irremovable  rector  against  his  will,  but  even  they 
say  that  the  necessity  must  be  imperative,  that  it 
must  be  established  beyond  a  doubt,  that  the  incum- 
bent should  be  induced  to  resign,  that  it  must  clearly 
be  shown  that  the  church  to  which  he  is  transferred 
is  reallv  better  both  in  honor  and  income,  that  this 
transfer  should  not  be  made  except  where  it  is  im- 
possible to  otherwise  provide,  as  by  an  assistant. 
From  these  conditions  it  will  be  seen  that  even  these 
canonists  practically  deny  the  right  of  the  bishop. 
It  is  certain  that  neither  the  honor  nor  the  privileges 
of  an  irremovable  rector  will  be  maintained,  unless 
he  is  transferred  to  another  irremovable  rectorship. 
In  such  a  case  he  likely  would  consent. 

GO 


466  LEGAL    FORMULARY. 

532.  Whenever  the  law  enacts  the  penalty  of  dis- 
missal from  a  benefice  for  crime,  it  thereby  a  fortiori 
g"ives  the  judg'e  power  to  transfer  the  incumbent 
within  the  diocese  as  a  punishment,  if  some  mitig-at- 
ingf  circumstance  renders  such  a  sentence  advisable. 
It  may  be  asked,  can  a  bishop  in  such  circumstances 
transfer  a  priest,  ordained  titiilo  inissionis  since 
Nov.  30,  1885,  to  the  diocese  of  another  bishop  in  the 
same  province  with  the  consent  of  such  bishop,  but 
without  the  consent  of  the  priest,  i.  e.  the  priest  be- 
in^'  unwilling-?  The  reason  advanced  in  favor  of 
such  a  proposition  is  the  fact  that  in  answer  to  a  re- 
quest of  the  Fathers  of  the  Third  Plenary  Council 
the  Holy  See  issued  a  decree  of  which  the  following* 
is  a  copy: 

DECRETUM. 

De  Ordifiatis  Titulo  Missionis. 

R.  P.  D.  Archiepiscopus  Baltimorensis  suo  ac 
Episcoporum  Statuum  Foederatorum  America  nom- 
ine ab  Apostolica  Sede  petiit,  ut  juramentum  quod 
ordinati  titulo  missionis  prsestant,  eos  exinde  oblig^et 
non  pro  aliqua  Dioecesi  tantum,  sed  pro  tota  Pro- 
vincia  ecclesiastica,  ita  ut  presbyteri  sic  ordinati 
sola  coUatione  novi  tituli  in  aliam  dioecesim  ejusdem 
Provinciae  transferri  possint  de  consensu  utriusque 
Ordinarii,  quin  necessarium  sit  ut  ipsi  novum  jura- 
mentum emittant.  Insuper  expostulavit  quoad  pr^- 
teritum,  ut  ordinati  titulo  missionis  pro  aliqua  Dioecesi 
ad  aliam  Dioecesim  intra  eandem  Provinciam  trans- 
ferri possint  novo  titulo  novoque  praestito  juramento 
absque  recursu  ad  Apostolicam  Sedem.  Gum  autem 
supplices  hujusmodi  preces  in  audientia  diei  22 
Novembris,  1885,  Sanctissimo  D.  N.  Leoni  XIII  a 
R.  P.  D.  Dominico  Jacobini,  Archiepiscopo  Tyrensi, 
S.  Cong-reg"ationis  de  Propag-anda  Fide  Secretario 


TRANSFER    TO   OTHER    DIOCESE  467 

relatae  sint,  Sauctitas  Sua  eas  benig-ne  excipere,  ac 
expetita  privUetJfia  concedere  dig-nata  est,  et  super 
his  prsesens  decretum  expediri  mandavit. 

Datum  Romae,  ex  Aedibus  S.  Congreg'ationis  de 
Propag-anda  Fide,  die  30  Novembris,  1885. 

Joannes  Card.  Simeoni,  PrcB/ectiis. 

D.   Archiep.  Tyrens.,   Seer. 

533.  Now  it  is  a  well  known  fact  that  the  Holy 
See  often  grants  less,  but  never  more,  than  is  asked. 
The  bishops  in  making  their  request  made  no  men- 
tion, in  fact  had  no  thoug-ht,  so  I  am  informed,  of 
transferring-  a  priest  ag^ainst  his  will  from  one  dio- 
cese to  another  within  the  province.  They  simply 
wished  to  do  away  with  the  necessity  of  asking-  the 
consent  of  the  Holy  See  for  every  case  when  a  priest 
wished  a  chang-e  of  diocese  and  the  two  interested 
bishops  consented.  Moreover  in  some  dioceses  where 
priests  are  numerous  it  was  and  is  a  practice  to  loan 
them  with  their  consent  to  neig-hboring-  bishops  who 
need  them.  This  practice  is  mentioned  in  n.  69  of 
the  decrees  of  the  Third  Council.  But  with  the 
oath  as  formerly  taken  to  labor  in  hac  dia^eesi  these 
priests  could  not  lawfully  work  even  temporaril}', 
i.  e.,  for  several  years,  in  the  neig'hboring^  diocese. 
Bishops  and  priests  became  scrupulous  about  the 
oath.  Hence  the  petition  to  the  Holy  See,  which 
granted  the  request  by  a  decree.  A  favor  g-ranted 
to  the  bishops  and  priests  cannot  well  be  turned  to 
the  disadvantagfe  of  the  latter,  unless  special  men- 
tion is  made  of  such  intention.  {R?(le  •,-,  /.  40,  I.  -r. 
de  verb.  s/^?i.  Reijfenstuel.)  Moreover,  such  an 
interpretation  of  the  decree  as  would  sanction  a 
penal  transfer   of  a   priest  from  his   original  diocese 


468  LEGAL   FORMULARY. 

to  another,  would  change  radically  the  laws  of  the 
church  reg'arding'  rights  in  a  diocese  and  diocesan 
rig-hts,  which  cannot  be  done  by  implication,  but 
only  by  direct  legislation.  Kven  when  an  ecclesias- 
tic in  a  church  court  is  condemned  to  exile,  he  still 
has  an  inherent  right  to  be  considered  a  member  of 
the  diocese.  But  exile  is  a  greater  punishment  than 
transfer;  hence  a  fortiori.  Moreover  in  -punitivis 
mitior  et  benignior  interf>retatio  est  adhibenda, 
which  surely  is  against  such  penal  transfer.  If  it  is 
claimed  that  the  priest  has  virtually  consented  in 
advance,  when  such  removal  is  deemed  expedient  by 
the  ordinaries,  a  simple  denial  is  all  that  is  required 
in  answer,  for  the  Holy  See  has  not  authorized  such 
a  far-fetched  interpretation.  The  Holy  See  does  not 
thus  treat  the  free  will  of  priests  and  the  rights  of 
third  parties,  and  superiors,  it  seems,  would  scarce- 
ly be  justified  in  thus  explaining  the  oath  to  young 
men  before  ordination,  without  an  authentic  inter- 
pretation of  the  Holy  See  in  explanation  of  its  de- 
cree. Meanwhile  the  one  fact  that  the  bishops  did 
not  ask  to  be  allowed  authority  to  transfer  priests 
in  a7iy  circumstances  without  their  consent,  is  a  suf- 
ficient proof  that  the  Holy  See  granted  no  such  per- 
mission, even  implicitly. 

534.  Removal  from  office,  or  deprivation  of  one's 
benefice,  is  a  canonical  punishment  by  which  an 
ecclesiastic  loses  his  parish  or  office  without  being 
appointed  to  another,  but  nevertheless  without  be- 
ing disqualified  from  holding  office  in  the  future. 
Hence  it  differs  from  a  penal  transfer  which  is  a  less 
punishment,  and  from  deposition  which  is  a  greater 
one,   because    this   last  disqualifies    a    person    from 


DISMISSAL   P'ROM    PARISH.  469 

holding"  office  also  for  the  future.  The  punishment 
of  removal  or  dismissal  can  be  inflicted  on  incumbents 
of  any  ecclesiastical  office,  but  it  is  especialU^  severe 
on  those  who  have  the  cure  of  souls,  either  as  irre- 
movable or  as  movable  rectors.  It  is  held  to  be 
equivalent  to  social  or  civil  death;  and  is  one  of  the 
severest  or  g^reatest  of  the  reg^ular  or  ordinary  pun- 
ishments of  the  church.  Hence  it  cannot  be  inflicted 
except  for  crime  judicially  proven.  For  this  reason 
when  an  ecclesiastic  because  of  inexperience,  want  of 
knowledg"e  or  ability,  or  because  of  old  ag^e  or  ill 
health  becomes  unable  to  discharg-e  the  duties  of  his 
office,  parish  or  benefice,  he  cannot  be  deprived  of  it, 
{c.  5,  de  cler.  ceg-j'o.  j,  6.)  but  simply  an  assistant  or 
coadjutor  must  be  assig^ned  to  him.  (C/.  c.  j,  4,  de 
cler.  oeg".  3,6;  Con.  Trid.  sess.  21,  c.  6;  DeAng'elis, 
I.  J,  t.  6,  n.  2.) 

535.  Irremovable  rectors  in  the  United  States  can 
be  deposed  only  1°  for  crime.  2°  The  crime  must  be 
gfrave  and  atrocious.  3°  The  crime  must  be  ex- 
pressly stated  in  law  as  punishable  b}^  deprivation 
of  office.  4°  The  crime  must  be  fully  proved  by  a 
judicial  trial,  following-  the  "Cum  mag-nopere." 
This  trial  is  required  also  when  a  crime  is  charg-ed 
which  ipso  facto  deprives  the  incumbent  of  his 
office.  5°  Before  removal  is  decreed  all  preventive 
remedies  must  have  been  tried  in  vain,  and  then  after 
trial  the  milder  repressive  punishments,  such  as 
suspension,  must  first  be  tried  in  vain  before  dis- 
missal may  be  decreed.  Thus  all  canonists  say  that 
dismissal  must  be  used  only  as  a  last  resort  and  then 
by  judicial  sentence.  For  the  effect  of  this  sentence 
on  appeal,  see  n.  106  on  pag"e  105. 


470  LEGAIv    P'ORMULARY. 

The  crimes  for  which  dismissal  of  an  irremovable 
rector  may  be  ordered  are:  Alienation  of  property 
of  the  parish  without  the  solemnities  of  law;  simony, 
real  or  confidential;  heresy,  falsification  of  apostolic 
letters,  striking-  a  cardinal  of  the  Holy  Roman 
church,  'assassination,  sodom3%  all  of  which  crimes 
deprive  an  incumbent  of  his  benefice  ipso  jii7'e\  only 
a  declaratory  sentence  being*  required  after  citation. 
To  these  are  added  several  from  the  Third  Council 
of  Baltimore,  for  which  see  n.  105  above  on  pag^e  104, 
or  Third  Council  of  Baltimore  n.  38. 

536.  It  is  certain  that  a  movable  rector  can  be 
removed  from  office  or  dismissed  only  as  a  punish- 
ment for  crime  or  for  a  breach  of  discipline,  and  then 
only  after  atrial  according"  to  "Cum  mag-nopere." 
(5.  Cong-.  Prof.  28  Mar.  i88y.)  Not  for  a  trivial 
offense,  but  only  for  a  serious  one  may  these  rectors 
be  dismissed.  Moreover  they  cannot  be  even  trans- 
ferred without  a  trial,  when  crime  or  a  breach  of 
discipline  is  the  alleg^ed  reason.  However,  the  crime 
need  not  be  so  serious  as  in  the  case  of  an  irremovable 
rector.  The  present  position  of  a  movable  rector 
seems  somewhat  anomalous;  for  when  charg^ed  with 
crime  he  is  entitled  to  a  trial  before  he  can  be  trans- 
ferred, and  pending-  the  trial  may  retain  possession 
of  his  parish;  but  if  he  is  without  fault  and  is  trans- 
ferred, even  to  an  inferior  place,  he  must  vacate  his 
parish  immediately,  and  can  only  make  a  recourse  to 
the  Holy  See  or  the  Apostolic  Deleg-ation.  After 
patiently  awaiting*  a  decision,  even  if  finally  re-in- 
stated, he  has  no  redress  for  the  illeg-al  expenses 
entailed  upon  him,  nor  for  the  inevitable  loss  of  g-ood 
name  because  of  the  attempted  transfer. 


SUPPORT    WHEN    DISMISSED.  471 

537.  When  an  ecclesiastic  is  dismissed  from  his 
parish,  even  for  crime  as  stated  above,  he  is  not  and 
cannot  be  deprived  of  necessary  support;  thoug^h  he 
has  no  claim  to  the  comforts  of  life.  (C/".  Snialz- 
griieber,  I.  5,  /.  j^i,  n.  jos\  Miinchcn,  vol.  2,  pg-. 
2J4;  Streynler,  Peines,  pg.  ji-33;  III  Conn.  Bait, 
n.  y2;   S.  Cong.  Prop.  Feb.  4.,  iSyj.) 

If  the  dismissed  ecclesiastic  has  sufficient  means  of 
his  own,  not  however  from  his  family  or  friends,  the 
bishop  is  not  oblig"ed  to  g^ive  him  even  the  necessaries 
of  life.  {Cf.  Glossa,  c.  23  de  elect.  /,  6.)  Otherwise 
the  bishop  certainly  is  oblig^ed  to  do  so,  especially  if 
the  priest  has  been  ordained  titido  niissionis.  So 
longf  as  there  is  a  chance  for  repentance,  such  moder- 
ate support  must  be  g-iven  according-  to  the  decree  of 
the  Propag-anda,  of  Feb.  4,  1873.  When,  however, 
after  repeated  trials  and  warning-s  the  dismissed 
cleric,  no  matter  what  was  his  office,  is  found  unre- 
pentant and  persistent  in  a  criminal  life,  then  "after 
the  bishop  has  g^iven  him  a  previous  declaration  to 
the  effect  that  because  of  such  unworthiness  he  re- 
mains deprived  of  the  title  of  mission  and  conse- 
quently of  the  rig^ht  to  support  from  the  diocese; 
just  so  long-  as  the  priest  perseveres  in  his  evil  course 
without  g-ivingf  any  sig-ns  of  sincere  repentance,  the 
bishop  is  not  oblig'ed  to  g"ive  him  support."  Sup- 
port for  dismissed  ecclesiastics  mig-ht  well  be  taken 
from  the  fines  assessed  in  court  as  punishments. 
(See  n.  525  above.)  Support  for  ecclesiastics  tem- 
porarily suspended  should  be  taken  from  their  parish 
or  office. 

538.  From  this  decision  of  the  Propag'anda  it  is 
certain,  conversely,  that  worthy  priests  even  if  In  ill 


472  IvE^GAL    FORMUI^ARY. 

health  and  incapacitated  for  work  are  nevertheless, 
because  of  the  title  of  mission,  entitled  to  support 
from  the  diocese,  and  the  bishop  is  obliged  to  see 
that  they  receive  it.  Neither  can  this  support  be  a 
mere  pittance,  but  it  must  be  a  congfruous  support, 
giving*  not  only  the  absolute  necessaries  but  also  the 
ordinary  comforts  of  life.  Further,  it  is  also  certain 
from  the  same  decision  that  as  a  final  punishment 
even  after  dismissal  the  bishop  may  make  a  declara- 
tion that  the  offending-  ecclesiastic  has  forfeited  his 
title  of  ordination,  that  of  mission.  This  declaratory 
sentence  cuts  him  off  from  all  support;  but  even  this 
declaration  must  be  withdrawn  when  the  priest 
shows  signs  of  repentance.  He  must  then  again  be 
given  necessary  support. 

539.  Regarding  the  title  of  mission  mentioned 
above,  when  a  priest  is  declared  deprived  of  it,  he 
has  really  no  title.  But  if  he  is  ordained  by  the  title 
of  patrimony,  it  cannot  be  forfeited  and  from  the  in- 
come of  such  title  he  may  derive  .support  even  under 
censure  or  dismissal.  The  Propaganda  distinctly 
advises  that  so  far  as  possible  other  legitimate  titles 
instead  of  that  of  mission  be  introduced  for  ordina- 
tion. Further  when  a  priest  ordained  by  other  title 
than  that  of  mission  changes  his  diocese,  he  is  not  to 
take  any  oath,  but  only  to  make  obedience  to  the 
ordinary  of  his  new  diocese.  In  n.  194  above,  it  is 
said,  "a  virtual  incardination  into  a  diocese,  no  mat- 
ter what  the  title,  occurs  /^^o  facto  at  the  expiration 
of  three  or  five  years'  service  unless  the  bishop  has  ex- 
plicitly stated  the  contrary  to  the  priest  before  the 
end  of  such  respective  period."  But  this  should  not 
be  understood    to  exclude  any  other  incardination. 


INCAKUINATION    INTO    DIOCESE.  473 

With  the  consent  of  both  bishops  interested, 
a  priest  may  at  once  be  g'iven  an  exeat  from  one  dio- 
cese and  a  written  ineat  into  another,  notice  of  the 
acceptance  bein^  ^iven  to  the  bishop  g"ivin^  the  exeat. 
If  the  priest  is  not  ordained  titulo  viissionis,  no  other 
formality  is  required.  If  ordained  by  the  title  of 
mission  since  Nov.  30,  1885,  and  the  dioceses  are  in 
the  same  province  then  nothinor  more  is  required,  for 
the  oath  is  now  widened  so  as  to  allow  him  to  work 
anywhere  in  the  province.  If  ordained  by  the  title  of 
mission  before  Nov.  30,  1885,  he  simply  renews  the 
oath  for  his  new  diocese  without  consulting"  the  Holy 
See.  But  when  the  dioceses  are  in  a  different  prov- 
ince then  a  new  oath  is  to  be  taken  and  permission  of 
the  Holy  See  obtained.  However  if  the  bishop,  be- 
fore a,ccepting-  the  applicant,  wishes  to  g-ive  him  a 
trial,  he  may  do  so  first  for  three  years;  and  if  this 
term  is  not  deemed  sufficient,  it  may  be  prolonged 
two  years  more,  provided  the  bishop  has  given  the 
priest  proper  notice  before  the  expiration  of  the  term 
of  three  years  to  the  effect  that  he  wMshes  the  term 
of  trial  extended  so  as  to  make  five  years  in  all. 
Meantime  the  priest  retains  his  title,  whatever  it 
be,  and  his  right  to  his  old  diocese.  Before  the  end 
of  the  five  years'  term  the  bishop  is  obliged  to  inform 
the  priest  if  he  declines  to  admit  him;  otherwise  by 
the  expiration  of  the  five  years  the  priest  becomes 
ipso  facto  incardinated  into  the  new  diocese.  The 
term  of  three  years  and  again  of  five  years,  like 
other  terms  in  re  beueficiaria,  is  to  be  stricth'  con- 
strued to  the  very  dav.  Such,  too,  has  been  the 
holding  of  the  Apostolic  Deleg'ation  in  several  cases, 

and  especially   in  one  of   1896,   wherein  the  question 
61 


474  LEGAL    FORMULARY. 

was  introduced  whether  the  term  beg"an  with  the 
date  of  the  bishop's  letter  of  acceptance  for  trial,  or 
with  the  date  of  actual  taking-  possession  of  a  mis- 
sion in  the  diocese,  which  occurred  some  days  later. 
The  following-  form  may  be  used  for  letters  of  con- 
ditional excardination  which  become  absolute  per  se 
when  the  priest  is  admitted  into  another  diocese,  but 
up  to  such  time  require  for  safety  an  annual  report 
to  the  bishop  under  whose  jurisdiction  the  priest  still 
remains: 

"N.    Episcopus   N — .       Dilecto  Nobis  in  Christo 
Revdo  N.  N.  salutem  in  Domino: 

Cum  tu,  Revde  Domine,  propter  rationes  a  Nobis 
cog-nitas  et  admissas,  ab  hac  nostra  dioecesi  definitive 
excorporari  cupias  ut  in  aliam  (seu  in  dioecesim  N.) 
ineas,  decretis  III  Cone.  Plen.  Bait,  inha^rentes, 
votis  tuis  libenter  annuimus;  attestantes  te  esse  sac- 
erdotem  bonis  moribus  imbutum  et  ab  hac  nostra 
dioecesi  abire  nulla  censura  ecclesiastica  neque  alio 
canonico  impedimento  aut  poena,  quod  sciamus,  irre- 
titum.  Volumus  autem,  ut  praesentes  litteras  in 
eventu  incorporationis  sive  formalis  sive  praesumptiv^ 
in  aliam  dioecesim  ipso  facto  futurae  sint  litterae  ex- 
cardinationis.  Ceterum,  prsecipimus  ut  sinorulis 
annis  a  die  praesenti  computandis,  donee  in  aliam 
dioecesim  non  sis  legitime  cooptatus,  certiores  Nos 
facias  de  munere  cui  incumbas  et  de  valitudine,  sub 
poena  suspensionis  Nobis  reservatae  ipso  facto  incur- 
renda,  trig-esimo  die  post  annum  elapso.  In  quorum 
fidem  pr^sentes  litteras  manu  nostra  sig-natas  sigil- 
loque  nostro  munitas  exarari  jussimus.  Datum  &c. 
[l.  s.]  N.  Episcopus  N. 

N.  Cancellarius." 

540.  More  severe  than  removal  from  office  is  the 
punishment  of  deposition,  which  means  that  an 
ecclesiastic  is  forever  deprived  of  his  office  or  benefice 


DEPOSITION.  475 

and  also  of  the  rig-ht  to  exercise  the  functions  or 
power  of  his  ordo.  This  punishment  entails  infamy, 
and  usually  disqualification  from  holding-  office  for 
the  future  is  attached  to  it  in  the  sentence.  Even 
after  full  penance  and  amendment,  the  deposed  per- 
son has  no  right  to  be  restored.  The  bishop,  while 
not  oblig^ed,  may  reinstate  him  if  he  judges  fit, 
provided  the  crime  was  not  atrocious,  such  as  wilful 
murder.  Deposition  can  be  imposed  only  for  crimes 
which  are  enormous,  g"ive  g^reat  scandal,  and  are  ex- 
pressly stated  in  law  as  meriting-  deposition,  such  as 
wilful  murder,  public  concubinag-e,  &c. 

541.  Deg-radation,  which  is  rarely  inflicted  to-day, 
is  a  canonical  punishment  by  which  an  ecclesiastic  is 
wholly  and  forever  deprived  of  the  exercise  of  the 
power  of  orders,  and  also  of  all  benefices,  and  is  re- 
duced to  the  state  of  a  layman.  Deg-radation  can  be 
inflicted  only  for  enormous  crimes  and  only  when  the 
law  especially  attaches  such  punishment,  and  then  as 
a  last  resort.  At  present  the  bishop  can  inflict  ver- 
bal deg-radation,  i.  e.  by  sentence;  but  actual  degra- 
dation or  the  execution  of  the  sentence  formerly 
could  be  had  only  by  twelve  bishops  assisting-  to 
impose  it  on  a  bishop,  six  bishops  on  a  priest,  and 
three  bishops  on  a  deacon.  At  present  the  bishop, 
instead  of  being-  bound  to  have  six  bishops  or  three 
respectively,  can  use  six  or  three  mitred  abbots,  or 
also  other  persons  in  dig-nit3%  who  are  of  gTeat 
weig-ht  by  their  ag-e  and  knowledg-e  of  canon  law. 
These  persons  are  actually  associate  judg-es  and  have- 
not  only  a  deliberative  but  a  decisive  vote  in  the 
sentence. 

All  vindicatorv  punishments  must  be  inflicted  as  a 


476  LEGAL   FORMULARY. 

definitive  sentence  after  trial,  or  as  a  declaratory 
sentence  after  trial  when  the  law  ipso  facto  imposes 
the  punishment.  The  forms  for  such  sentences  are 
given  above  in  n.  429  and  499.  Infamy  and  irregu- 
larity are  also  serious  punishments  consequent  on 
crime,  and  often  included  with  other  punishments. 
They  are  prohibitive  from  orders  and  benefices  and 
require  an  explicit  dispensation.  While  irreg'ularity 
for  crime  and  also  for  infamy  is  contracted  ifso 
facto,  still  for  the  external  forum  a  declaratory  sen- 
tence is  g^enerally  required.  This  declaration  may 
be  included  in  the  sentence  for  the  crime  after  trial. 
For  a  more  extensive  treatment  of  these  punishments 
special  works  on  canon  law^  should  be  consulted. 


CHAPTER  XXIII. 

EXCOMMUNICATIONS,        SUSPENSIONS,        INTERDICTS 

EAT^    SENTENTI^. 

542.  For  convenient  reference  a  list  of  the  cen- 
sures which  are  latcB  sentcnticc  throughout  the  world 

« 

is  ^iven  below^: 

PRIMA  TABELLA. 

In  hac  prima  tabella  continentar  excommunicationes  Romano 
Pontifici  specialiter  reservatae. 

1.  Omnes  a  Christiana  Fide  apostatas  et  omnes  ac  sin^nilos 
haereticos,  quocumque  nomine  censeantur  et  cujuscumque  sectae 
exsistant,  eisque  credentes;  eorumque  receptores,  fautores,  ac 
generaliter  quoslibet  illorum  defensores. 

2.  Omnes  et  singulos  scienter  legentes  sine  auctoritate  Sedis 
Apostolicae  libros  eorumdum  apostatarum  et  haereticorum  haer- 
esim  propugnantes,  necnon  libros  cujiisvis  auctoris  per  Apostoli- 
cas  Litteras  nominatim  prohibitos,  eosdemque  libros  retinentes, 
imprimentes  et  quomodolibet  defendentes. 

3.  Schismaticos,  et  eos  qui  a  Romani  Pontificis  pro  tempore  ex- 
sistentis  obedientia  pertinaciter  se  subtrahunt,  vel  recedunt. 

4.  Omnes  et  singulos,  cujuscumque  status,  gradus  seu  condi- 
tionis  fuerint,  ab  ordinatiouibus  seu  mandatis  Romauorum  Pon- 
tificum  pro  tempore  exsistentium  ad  universale  futurum  Con- 
cilium appellantes,  nee  non  eos,  quorum  auxilio,  eonsilio  vel 
favore  appellatum  f uerit. 

5.  Omnes  interlicientes,  mutilautes,  percutientes,  capientes, 
carcerantes,  detinentes,  vel  hostiliter  insequeutes  S.  R.  E.  Cardi- 
nales,  Patriarchas,  Archiepiscopos,  Episcopos,  Sedisque  Apos- 
tolicae Legatos  vel  Nuntios,  aut  eos  a  suis  Dioecesibus.  Territoriis, 
Terris  seu  Dominiis  ejicientes,  nee  non  ea  mandantes  vel  rata 
habentes  seu  praestantes  in  eis  auxilium,  consilium  vel  favorem. 

6.  Impedientes  directe  vel  indirecte  exercitium  jurisdictionis 
ecclesiasticae  sive  interni  sive  externi  fori,  et  ad  hoc  recurrentes 

477 


478  LEGAL    FORMULARY. 

ad  forum  saeculare,  ejusque  mandata  procurantes,  edentes,  aut 
auxilium,  consilium  vel  favorem  praestantes. 

7.  Cogentes  sive  directe  sive  indirecte  judices  laicos  ad  trahen- 
dum  ad  suum  tribunal  personas  ecclesiastioas  praeter  canonicas 
dispositiones;  item  edentes  leges  vel  decreta  contra  libertatem  aut 
jura  Ecclesiae. 

8.  Recurrentes  ad  laicam  potestatem  ad  impediendas  litteras 
vel  acta  quaelibet  a  Sede  Apostolica,  vel  ab  ejusdem  Legatis  aut 
Delegatis  quibuscumque  profecta,  eorumque  promulgationem  vel 
executionem  directe  vel  indirecte'  prohibentes,  aut  eorum  causa 
sive  ipsas  partes  sive  alios  laedentes  vel  perterrefacientes. 

9.  Omnes  falsarios  Litterarum  Apostolicarum,  etiam  in  forma 
Brevis  ac  supplicationum  gratiam  vel  justitiam  concernentium 
per  Romanum  Pontiflcem,  vel  S.  R.  E.  Vice-Cancellarios  seu 
Gerentes  vices  eorum  aut  de  mandato  ejusdem  Romani  Pontificis 
signatarum;  nee  non  falso  publicantes  Litteras  Apostolicas,  etiam 
in  forma  Brevis,  et  etiam  falso  signantes  supplicationes  hu jus- 
modi  sub  nomine  Romani  Pontificis,  seu  Vice-Can(?ellarii  aut 
Gerentis  vices  praedictorum. 

10.  Absolventes  complicem  in  peccato  turpi  etiam  in  mortis 
articulo,  si  alius  Sacerdos,  licet  non  approbatus  ad  confessiones, 
sine  gravi  aliqua  exoritura  infamia  et  scandalo  possit  excipere 
morientis  confessionem. 

11.  Usurpantes  aut  sequestrantes  jurisdictionem,  bona,  reditus 
ad  personas  ecclesiasticas,  ratione  suarum  ecclesiarum  aut  bene- 
ficiorum  pertinentes. 

12.  Invadentes,  destruentes,  detinentes  per  se  vel  per  alios,  civi- 
tates,  terras,  loca  aut  jura  ad  Ecclesiam  Romanam  pertineutia; 
vel  usurpantes,  perturbantes,  retinentes  supremam  jurisdictionem 
in  eis;  nee  non  ad  singula  praedicta  auxilium,  consilium,  favorem 
praebentes. 

13.  a)  Canonici  ac  Dignitates  Cathedralium  Ecclesiarum 
vacantium,  qui  ausi  fuerint  concedere  et  transferre  Ecclesiae 
vacantis  curam,  regimen  et  administrationem  sub  quovis  titulo, 
nomine,  quaesito  colore,  in  nominatum  et  praesentatum  a  laica 
potestate,  ante  exhibitionem  Literarum  Apostolicarum. 

b)  Nominati  et  praesentati  vel  ut  supra  electi  ad  vacantes  Eccle- 
sias,  qui  earum  curam,  regimen  et  administrationem  suscipere 
audent  sub  nomine  Provisoris,  Vicarii  generalis  aliove  nomine,  ex 
concessione  et  translatione  in  eis  peracta  a  Dignitatibus  et  Canoni- 
cis,  aliisque  qui,  deficientibus  Capitulis,  Vicarios  deputant  aut 
vacantes  Ecclesias  legitime  administrant. 

c)  li  omnes  qui  praemissis  paruerint,  vel  auxilium,  consilium 


EXCOMMUNICATIONES    LATAE.  479 

aut  favorem  praestiterint,  cu.juscumque  status,  conditiouis,  prae- 
eminentiae  et  dignitatis  fuerint. 

14.  Omnes  et  singali  nomine  dantes,  vel  quomodocumque 
faventes,  vel  adhaerentes  Societati  in  eum  finem  institntae.  vel 
instituendae  ut,  quandocnmqae  Apostolica  Sedes  vacaverit,  pop- 
ulus  Romanus  concurrat  in  summi  Pontificis  electione. 

SECUNDA  TABELLA. 

543.  In  hac  secunda  tabella  referuntur  omnes  excommunica- 
tiones  quae  sunt  simpliciter  reservatae  Romano  Pontifici. 

1.  Docentes  vel  defend  entes  sive  publice  sive  privatim  proposi- 
tiones  ab  Apostolica  Sede  damnatas  sub  excommunicationis  poena 
latae  sententiae;  item  docentes  vel  defendentes  tamquam  licitam 
praxim  inquirendi  a  poenitente  nomen  complicis,  prouti  damnata 
est  a  Benedicto  XIV  in  Const.  'S'icpreina,  7  Jul.  1745;  Ubi  primum 
2  Julii  1746:  Ad  eradicandum,  28  Septembris  1746. 

2.  Violentas  manus,  suadente  diabolo,  injicientes  in  Clericos  vel 
utriusque  sexus  Monachos,  exceptis  quoad  reservationem  casibus 
et  personis,  de  quibus  jure  vel  privilegio  permittitur,  ut  Episcopus 
aut  alius  absolvat. 

3.  Duellum  perpetrantes,  aut  simpliciter  ad  illud  provocantes 
vel  ipsum  acceptantes,  et  quoslibet  complices  vel  qualemcumque 
operam  aut  favorem  praebentes,  nee  non  de  industria  spectantes, 
illudque  permitteutes  vel,  quantum  in  illis  est,  non  prohibentes, 
cujuscumque  dignitatis  sint,  etiam  regalis  vel  imperialis. 

4.  Nomen  dantes  sectae  Massonicae  aut  Carhonariae  aut  aliis 
ejusdem  generis  sectis,  quae  contra  Ecclesiam  vel  legitimas  potes- 
tates  seu  palam,  seu  clandestine  machinantur,  nee  non  iisdem 
sectis  favorem  qualemcumque  praestantes:  earumve  occultos  cory- 
phaeos  ac  duces  non  denuntiantes,  donee  non  denuntiaverint, 

5.  Immunitatem  asyli  ecelesiastici  ausu  temerario  violare 
jubentes  aut  violantes. 

6.  Violantes  clausuram  Monialium,  cujuscumque  generis  aut 
conditionis,  sexus  vel  aetatis  fuerint,  in  earum  xMonasteria  absque 
legitima  licentia  ingrediendo;  pariterque  eos  introducentes  vel 
admittentes:  itemque  Moniales  ab  ilia  exeuntes  extra  casus  ac 
formam  a  S.  Pio  V  in  Const.  Decor i  praescriptam. 

7.  Mulieres  violantes  Regularium  virorum  clausuram,  et  Supe- 
riores  aliosve  eas  admittentes. 

8.  Reos  simoiiiae  realis  in  benefieiis  quibuscumque  eorumque 
complices. 

9.  Reos  simoniae  eonfidentialis  in  benetieiis  quibuslibet.  cujus- 
cumque sint  dignitatis. 


480  LEGAL    FORMULARY. 

10.  Reos  sjmoniae  realis  ob  ingressum  in  Religionem. 

11.  Omnes  qui,  quaestum  facientes  ex  Indulgentiis  aliisque 
gratiis  spiritaalibus,  excommunicationis  censura  plectuntur 
Const.  S.  Pii  V,  Quam  plemoii,  2  Jan.  1569. 

12.  Colligentes  eleemosynas  majoris  pretii  pro  Missis  et  ex  iis 
lucrum  captantes  faciendo  eas  celebrari  in  locis,  ubi  Missarum 
stipendia  minoris  pretii  esse  solent. 

13.  Omnes  qui  excommunicatione  mulctantur  in  Constitutioni- 
bus  S.  Pii  V,  Admonet  nos,  quarto  kalendas  Aprilis  1567;  Innocenti 
IX,  Quae  ab  hac  Sede,  pridie  nonas  Novembris  1591;  dementis 
VIII,  Ad  Romani  Pontiftcis  curmn,  25  Junii  1592,  et  Alexandri  VII, 
Inter  ceteras,  nono  kalendas  Novembris  1660,  alienationem  et  in- 
feudationem  civitatum  et  locorum  S.  R.  E.  respicientibus. 

14.  Religiosi  praesumentes  Clericis  aut  laicis  extra  casum  neces- 
sitatis Sacramentum  Extremae  Unctionis  aut  Eucharistiae  per 
viaticum  ministrare  absque  Parochi  licentia. 

15.  Extrahentes  absque  legitima  venia  reliquias  ex  sacris  Coe- 
meteriis  sive  Catacumbis  Urbis  Romae  ejusque  territorii,  eisque 
auxilium  vel  favorem  praebentes. 

16.  Communicantes  cum  excommunicato  nominatim  a  Papa  in 
crimine  criminoso,  ei  scilicit  impendendo  auxilium  vel  favorem. 

17.  Clericos  scienter  et  sponte  communicantes  in  divinis  cum 
personis  a  Romano  Pontifice  nominatim  excommunicatis  et  ipsos 
in  Officiis  recipientes. 

18.  Absolvere  praesumentes  ab  excommunicationibus  Romano 
Pontiflci  speciali  modo  reservatis,  etiam  quovis  praetextu,  revo- 
catis  indultis  concessis  sub  quavis  forma  et  quibusvis  personis 
etiam  Regularibus  cujuscumque  Ordinis,  Congregationis,  Socie- 
tatis  et  Instituti,  etiam  speciali  mentione  dignis  et  in  quavis  dig- 
nitate  constitutis. 

19.  Si  quem  Clcricorum  vel  laicorum,  quacumque  is  dignitate, 
etiam  imperiali  aut  regali,  praefulgeat,  in  tautum  malorum  om- 
nium radix  cupiditas  occupaverit,  ut  alicujus  ecclesiae  seu  cujus- 
vis  saecularis  velregularis  beneficii,  montium  pietatis,  aliorumque 
piorum  locorum  jurisdictiones,  bona,  census  ac  jura  etiam  feudalia 
et  emphyteutica,  fructus,  emolumenta  seu  quascumque  obven- 
tiones,  quae  in  ministrorum  et  pauperum  necessitates  converti 
debent,  per  se  vel  per  alios  vi  vel  tiniore  incusso,  seu  etiam  per 
suppositas  personas  Clericorum  aut  laicorum,  seu  quacumque 
arte  aut  quocumque  quaesito  colore  in  proprios  usus  convertere, 
illosque  usurpare  praesumpserit,  seu  impedire  ne  ab  iis,  ad  quos 
jure  pertinent,  percipiantur;  is  anathemati  tamdiu  subjaceat, 
quamdiu  jurisdictiones,  bona,  res,  jura,  fructus  et  reditus,  quos 


EXCOMMUNICATIONES    LATAE.  481 

occupaverit  vel  qui  ad  eum  quomodociimque,  etiam  ex  donatione 
suppositae  personae,  perveuerint,  ecclesiae  ejiisque  admiiiistratori 
sive  beneficiato  integre  restituerit,  .ac  deinde  a  Romano  Pontifice 
absolutionem  obtiuuerit.— Ex  Cone.  Trid.  sess.  22,  c.  11,  de  lie/or m. 

TERTIA    TABELLA. 

544.  Haec  tertia  tabella  continet  excommuiiicatioiies  Episcopis 
sive  Ordinariis  locorum  reservatas. 

1.  Clericos  in  Sacris  constitutos  vel  Regulares  aut  Moniales  post 
votum  solemne  castitatis  Matrimonium  contrahere  praesumentes; 
nee  non  omnes  cum  aliqua  ex  praedictis  personis  Matrimonium 
contrahere  praesumentes. 

2.  Procurantes  abortum,  effect u  secuto. 

3.  Litteris  Apostolicis  falsis  scienter  utentes  vel  crimiui  ea  in 
re  cooperantes. 

4.  Laici  turpe  mercimonium  circa  missarum  stipendia  exer- 
centes.     Deer.  Congr.  Cone.  "Vigilanti  studio,"  d.  d.  25  Maji  1893. 

QUARTA   TABELLA. 

545.  In  hac  tabella  continentur  excommunication es  nemini 
reservatae. 

1.  Mandantes  seu  cogentes  tradi  ecclesiasticae  sepulturae  haer- 
eticos  notorios  aut  nominatim  excommunicates  vel  interdictos, 

2.  Laedentes  aut  perterrefacieutes  Inquisitores,  denuntiantes' 
testes,  aliosve  ministros   S.  Officii,  ejusve  Sacri  Tribunalis  scrip- 
turas   diripientes,  aut    comburentes,  vel    praedictis  quibuslibet 
auxilium,  consilium,  favorem  praestantes. 

3.  Alienantes  et  recipere  praesumentes  bona  ecclesiastica  absque 
beneplacito  Apostolico,  ad  formam  extra vagantis  Ambitiosae  de 
Reb.  Eccl.  non  alienandis. 

{Extvav.  coiiDit.  I.  ;>,  t.  4,  (•<(/>.  iinic.  de  rebus  Kcclesidc  non 
alienandi.s.) 

4.  Negligentes  sive  culpabiliter  omittentes  denuntiare  infra 
mensem  Confessarios  sive  Sacerdotes,  a  quibus  sollicitati  fuerint 
ad  turpia  in  quibuslibet  casibus  expressis  a  Praedecess.  Nostris 
Gregorio  XV,  Constit.  [J')iivcrs>\  20  Augusti  lt)22,  et  Benedicto  XIV. 
Constit.  tSacrameiitum  Poenifevfiac,  1  Junii  1741. 

5.  Libros  de  rebus  sacris  tractantes  sine  Ordinarii  approbatione 
imprimentes  aut  imprimi  facientes. 

6.  Bonifacii  VIII  Constitutionem,  quae  incipit  Po  iculoso,  reno- 
vans  saucta  Synodus.  uuiversis  Episcopis  sub  obtestatione  divini 
judicii  et  intei-minatione  maledictionis  aeternae  praecipit,  ut  in 
omnibus  Monasteriis  sibi  subjectis  ordinaria,  in  aliis  vero  Sedis 
Apostolicae  auctoritate,  clausuram  Sanctimonialium.  ubi  violata 

02 


482  IvEGAL    FORMULARY. 

fiierit,  diligenter  restitui,  et  ubi  inviolata  est,  conservari  maxinie 
procurent,  inobedientes  atque  contradictores  per  censuras  ecclesi- 
asticas  aliasque  poenas,  quacumque  appellatione  postposita,  com- 
pescentes,  invocato  etiam  ad  hoc,  si  opus  fuerit,  auxilio  brachii 
"saecularis.  Quod  auxilium,  ut  praebeatur,  omues'  christianos  Prin- 
cipes  hortatur  saucta  Synodus,  et  sub  excommunicationis  poena 
ipso  facto  incurreuda,  omnibus  magistratibus  saecularibus  injun- 
git.     i&'ess.  25,  c.  5,  cle  liegul. ) 

7.  Decernit  sancta  Synodus,  inter  raptorem  et  raptam,  quamdiu 
ipsa  in  potestate  raptoris  manserit,  nullum  posse  consistere  Matri- 
monium.  Quod  si  rapta  a  rajjtore  separata  et  in  loco  tuto  et  libero 
constituta  ilium  in  virum  habere  consenserit,  eam  raptor  in 
uxorem  habeat,  etnihilominus  raptor  ipse  ac  omnes  illi  consilium, 
auxilium  et  favorem-praebentes,  sint  ipso  jure  excommunicati. 
(/S'e^'.s.  24.  cap.  6,  de  Bcforvi.  Matritn.) 

8.  Praecipit  sancta  Synodus  omnibus,  cujuscumque  gradus,  dig- 
nitatis et  conditionis  exsistant,  sub  anathematis  poena,  quam  ipso 
facto  incurrant,  ne  quovis  modo  directe  vel  indirecte  subditos  suos 
vel  quoscumque  alios  cogant,  quominus  libere  Matrimonia  con- 
trahant.     {Sess.  24,  cap.  9,  de  Befonn.  Mairha.) 

0.  Anathemati  sancta  Synodus  subjioit  omnes  et  singulas  per- 
sonas,  cujuscumque  qualitatis  vel  conditionis  fuerint,  tam  Clericos 
quam  laicos,  saeculares  vel  Regulares,  atque  etiam  qualibet  digni- 
tate  fungentes,  si  quomodolibet  coegerint  aliquam  virginem  vel 
viduam,  aut  aliam  quamcunque  mulierem,  praeterquam  in  casibus 
in  jure  expressis;  ad  ingrediendum  Monasterium,  vel  ad  suscip- 
iendum  habitum  cujuscumque  Religionis,  vel  ad  emittendam  pro- 
fessionem,  quique  consilium,  auxilium  vel  favorem  dederint,  quique 
scientes  eam  non  sponte  ingredi  Monasterium  aut  habitum  sus- 
cipere,  aut  professionem  emittere,  quoquo  modo  eidem  actui  vel 
praesentiam  vel  consensum  vel  auctoritatem  interposuerint. 
Similiquoque  anathemati  subjicit  eos,  qui  sanctarum  virgin um  vel 
aliarum  mulierum  voluntatem  veli  a^ccipiendi  vel  voti  emittendi 
quoquo  modo  sine  justa  causa  impedierint,  {Sess.  25,  Cap.  18,  de 
jRegnl.) 

10.  Omnes  qui  excommunicatione  mulctantur  in  Constitutioni- 
bus  Urbani  VIII,  Ex  debito,  die  21  Febr.  1633,  et  Clementis  IX 
SolUcitudo,  die  17  Julii  1669,  respicientibus  mercaturas  et  negotia- 
tiones  saeculares  in  Indiis  Orientalibus,  et  in  America  tam  Aus- 
trali,  quam  Septentrional!. 
546.  SUSPENSIONES  IN  CONST.  "APOS.  SEDIS"  EXPRESSAE. 

1.  Suspensionem  ipso  facto  incurrunt  a  suorum  beneficiorum 
perceptione,  ad  beneplacitum  S.  Sedis,   Capitula  et  conventus 


SUSPENSIONES   LATAE.  483 

Ecclesiarum  et  Monasterioriim,  aliiqae  omnes,  qui  ad  illarum  seu 
illorum  regimen  et  administrationem  recipiunt  Episcopos  aliosve 
Praelatos  de  praedictis  Ecclesiis  sen  Monasteriis  apud  eamdem  S. 
Sedem  quovis  modo  provisos,  antequam  ipsi  exhibuerint  Litteras 
Apostolicas  de  sua  promotioue. 

2.  Suspensionem  per  trieiiuium  a  coUatione  Ordinum  ipso  jure 
incurrunt  aliquem  ordinantes  absque  titulo  beneficii  vel  patrimonii 
cum  pacto,  ut  ordinatus  non  petat  ab  ipsis  alimenta. 

3.  Suspensionem  per  annum  ab  Ordinum  administratione  ipso 
jure  incurrunt  ordinantes  alienum  subditum,  etiam  sub  praetextu 
beneficii  statim  conferendi,  aut  jam  collati,  sed  minime  sufficientis, 
absque  ejus  Episcopi  litteris  dimissorialibus,  vel  etiam  subditum 
proprium,  qui  alibi  tanto  tempore  moratus  sit,  ut  canonicum  im- 
pedimentum  contrahere  ibi  potuerit,  absque  Ordiuarii  ejus  loci 
litteris  testimonialibus. 

4.  Suspensionem  per  annum  a  collatione  Ordinum  ipso  jure  iu- 
currit,  qui,  excepto  casu  legitimi  privilegii,  Ordinem  sacrum  con- 
tulerit  absque  titulo  beneficii  vel  patrimonii  Clerico  in  aliqua  Con- 
gregatione  viventi,  in  qua  solemnis  professio  non  emittitur,  vel 
etiam  Religioso  nondum  professo, 

5.  Suspensionem  perpetuam  ab  exercitio  Ordinum  ipso  jure  in- 
currunt Religiosi  ejecti,  extra  Religionem  degentes. 

6.  Suspensionem  ab  Ordine  suscepto  ipso  jure  incurrunt.  qui 
eumdem  Ordinem  recipere  praesumpserunt  ab  excommunicato  vel 
suspense  vel  interdicto  nominatim  denuntiatis,  aut  ab  haeretico 
vel  schismatico  notorio;  eum  vero  qui  bona  fide  a  quopiam  eorum 
est  ordinatus,  exercitium  non  habere  Ordiuis  sic  suscepti,  donee 
dispensetur,  declaramus. 

7.  Clerici  saeculares  exteri  ultra  quatuor  menses  in  Urbe  Roma 
commorantes  ordinati  ab  alio  quam  ab  ipso  suo  Ordiuario  absque 
licentia  Card.  Urbis  Vicarii,  vel  absque  praevio  examine  coram 
eodem  peracto,  vel  etiam  a  proprio  Ordinario  posteaquam  in  prae- 
dicto  examine  rejecti  fuerint:  nee  non  Clerici  pertiuentes  ad  ali- 
quem e  sex  episcopatibus  suburbicariis.  si  ordinentur  extra  suam 
dioecesim,  dimissorialibus  sui  Ordinarii  ad  alium  directis  quam  ad 
Card.  Urbis  Vicarium:  vel  non  praemissis  ante  Ordiuem  sacrum 
suscipiendum  exercitiis  spiritualibus  per  decem  dies  in  domo 
urbaua  Sacerdotum  a  Missione  nuncupatorum,  suspensionem  ab 
Ordinibus  sic  susceptis  ad  beneplacitum  S.  Sedis  ipso  jure  incur- 
runt; Episcopi  vero  ordinantes  ab  usu  pontificalium  per  annum. 

5i7.  SUSPENSIONES  A  CONCILIO  TRIDENTINO  LATAE. 
1.  Abbates,  Collegia.  Capitula  et  alii  quicumque,  dimissorias  sibi 


484  LEGAT.    FORMULARY. 

non  subditis  concedentes,  ab  officio  et  beneflcio  per  annum  sint 
ipso  jure  suspensi.     {Sess.  23,  caj).  10,  de  Reform.) 

2.  Ordinautes  sibi  non  subditos,  nisi  horum  probitas  ac  mores 
Ordinariorum  suorum  testimonio  commendentur,  a  collatione  Or- 
dinum  per  annum;  sic  vero  ordinati  a  susceptorum  Ordinum  exe- 
cutione,  quamdiu  proprio  Ordinario  videbitur  e'xpedire,  sint  sus- 
pensi.    {Sess.  23,  cap  8,  de  Heform.) 

3.  Nemo  Episcoporum,  qui  titulares  vocantur,  etiamsi  in  loco 
nullius  dioecesis,  etiam  exempto,  aut  aliquo  Monasterio  cujusvis 
Ordinis  resederint,  aut  moram  traxerint,  vigore  cujusvis  privilegii 
sibi  de  promovendo  quoscumque  ad  se  venientes  pro  tempore  con- 
cessi,  alterius  subditum,  etiam  praetextu  familiaritatis  continuae, 
commensalitatis  suae,  absque  sui  proprii  Praelati  expresso  con- 
sensu aut  litteris  dimissoriis,  ad  aliquos  sacros  aut  minores  Ordines 
vel  primam  tonsuram  promo vere  seu  ordinare  valeat.  Contra 
f aciens  ab  exercitio  pontificalium  per  annum,  taliter  vero  promotus 
ab  exercutione  Ordinum  sic  susceptorum,  donee  suo  Praelato  visum 
fuerit,  ipso  jure  sint  suspensi.     [Sess.  14,  cap.  2,  de  Reform.) 

4.  Nulli  Episcopo  liceat  cujusvis  privilegii  praetextu  pontificalia 
in  alterius  dioecesi  exercere,  nisi  de  Ordinarii  loci  expressalicentia, 
et  in  personas  eidem  Ordinario  subjectas  tantum.  Si  secus  factum 
fuerit,  Episcopus  ab  exercitio  pontificalium,  et  sic  ordinati  ab  ex- 
ecutione  Ordinum  sint  ipso  jure  suspensi.  {^ess.  0,  ccfp.  5,  de 
Reform.) 

5.  Qui  non  arctatur  occasione  beneficii  recepti  vel  recipiendi,  et 
sede  vacante,  acceptis  infra  annum  a  die  vacationis  dimissoriis  a 
Capitulo,  ordinatur;  si  fuerit  tali  ordinatione  in  Minoribus  con- 
stitutus,  non  gaudet  privilegio  clericali;  si  in  Majoribus,  ipso  jure 
suspenditur  ab  eorum  executione  ad  beneplacitum  f  uturi  Praelati. 
{fSess.  7,  cap.  10,  de  Reform. ) 

6.  Si  quis  Parochus  vel  alius  Sacerdos,  sive  regularis  sive  saecu- 
laris  sit,  etiam  si  id  sibi  ex  privilegio  vel  immemorabili  consue- 
tudine  licere  contendat,  alterius  parochiae  sponsos  sine  illorum 
Paroohi  licentia  Matrimonio  conjungere  aut  benedicere  ausus 
fuerit,  ipso  jure  tamdiu  suspensus  maneat,  quamdiu  ab  Ordinario 
ejus  Parochi,  qui  Matrimonio  interesse  debebat,  seu  a  quo  bene- 
dictio  suscipienda  erat,  absolvatur.     {Sess.  24,  cap.  1,  de  Reform.) 

7.  Episcopi,  quod  absit,  si  concubinas  aut  alias  mulieres  de  qui- 
bus  possit  haberi  suspicio,  in  domo  vel  extra  detineant,  aut  cum 
iis  ullam  consuetudinem habeant,  eta  synodo  provinciali  admoniti 
se  non  emendaverint,  ipso  facto  sint  suspensi.  (Sess.  25,  cap.  14, 
de  Reform.) 

8.  Contrahentes  excommunicationem  latae  sententiae  Rom.  Pon- 
tifici  speciali  modo  reservatam,  si  episcopali  charactere  sint  insig- 


SUSPENSIONES   LATAE.  485 

niti,  in  poenam  suspensionis  ab  exercitio  poutiHcalium,  et  iuter- 
dicti  ab  in^ressii  ecclesiae  ipso  facto,  absque  ulla  declaratione,  iii- 
cidunt,  S.  Sedi  pariter  -speciali  modo  reservatam.  (C'on.st.  Roinnnus 
Pont  if  ex. ) 

9,  Ex  decreto  S.  C.  C.  d.  d.  25  Maji  1893  Sacerdotes  turpe  merci- 
moniuni  circa  missarum  stipeudia  a.i^entcs  ipso  facto  siispeiisioiiem 
a  diviuis  S.  Sedis  reservatam  iuciirriiiit:  item  clerici  noudum  sacer- 
dotes eandem  suspensiouem  quoad  susceptos  ordines  incurrunt  et 
iuhabiles  fiunt  ad  superiores  ordines  recipiendos.  ("  llfjildnti 
Studio,''  Maii2h,  1893,  S.  C.  C.) 

548.     INTERDICTA  IN  CONST.  "APOS.   SEDIS"    CONTENTA. 

1.  Interdictum  Romano  Pontifici  speciali  modo  reservatum  ipso 
jure  incurrunt  Universitates,  Collegia  et  Capitula,  quocumque 
nomine  nuncupentur,  ab  ordinationibus  seu  mandatis  ejusdem 
Romani  Pontiflcis  pro  tempore  exsistentis  ad  universale  futurum 
Concilium  appellantia. 

2.  Scienter  celebrantes  vel  celebrari  facientes  divina  in  loeis  ab 
Ordinario,  vel  delegato  Judice,  vel  a  jure  interdictis:  aut  nomiua- 
tim  excommunicatos  ad  divina  Officia,  seu  ecclesiastica  Sacra- 
meuta,  vel  ecclesiasticam  sepulturam  admittentes,  interdictum  ab 
ingressu  ecclesiae  ipso  jure  incurrunt,  donee  ad  arbitrium  ejus, 
cujus  sententiam  contempserunt,  competenter  satisfecerint. 

549.  INTERDICTA  LATA  A  CONCILIO  TRIDENTINO. 

3.  Metropolitanus  suffraganeos  Episcopos  absentes,  Metropoli- 
tanum  vero  absentem  suffraganeus  Episcopus  antiquior  residens, 
sub  poena  interdicti  ecclesiae  eo  ipso  incurrenda  infra  tres  menses 
per  litteras  seu  nuntium  Romano  Pontifici  denuntiare  teneatur. 
(tS'ess.  (3,  cap.  1,  de  Reform.) 

4.  Capitulum,  Sede  vacante,  dans  infra  annum  a  die  vacationis, 
dimissorias  ad  Ordines,  ei  qui  non  arctatur  oceasione  beneticii 
recepti  vel  recipiendi,  ecclesiastico  subjacet  interdicto.  (-sv.s.s.  7, 
eaj).  10,  de  Reform.) 

550.  The  specific  vindicatory  punishments  at- 
tached to  various  crimes  by  the  sacred  canons  may 
be  found  in  the  Corpus  Juris  from  which  the  law 
should  be  quoted  in  the  sentence.  Faults  ag"ainst 
discipline  are  usually  specified  in  diocesan  statutes 
and  the  sanction  therein  laid  down,  if  not  extrava- 
g'ant,  can  be  inflicted  after  due  trial.  Hence  it  seems 
unnecessar3\  and  for  other  reasons  also  inadvisable, 
to  insert  in  this  Formulary  a  list  of  crimes  and  the 
specific  punishment  attached  to  each. 


CHAPTER  XXIV.  • 

THE  "cum  MAGNOPERE." 

Instruction  of  the  Sacred  Congregation  de  Prop.  Fide  on  the 
manner  of  proceeding  which  must  be  observed  in  the  United  States 
of  North  America,  where  there  is  question  of  hearing  and  deciding 
criminal  and  disciplinary  causes  of  ecclesiastics. 

This  sacred  Council  deems  it  of  great  importance  that  in  eccle- 
siastical trials  such  a  method  of  proceeding  shall  be  observed,  as 
will  be  well  adapted  to  the  wants  of  the  times,  wholly  adequate  to 
the  regular  administration  of  justice,  and  fully  sufficient  to  pro- 
tect the  authority  of  Prelates,  as  well  as  to  stop  complaints  on  the 
part  of  the  accused.  Hence  it  has  pleased  this  Sacred  Congrega- 
tion to  re-examine  all  those  enactments  which  were  made  in  this 
matter  for  the  United  States  of  North  America,  and  laid  down  in 
the  Instruction  of  July  20, 1878,  and  in  the  subsequent  Response 
to  doubts  concerning  the  same.  Therefore,  the  Sacred  Congrega- 
tion haviog  maturely  weighed  all  things,  with  the  approval  of  our 
Most  Holy  Father,  Pope  Leo  XIII,  has  decreed  that  what  follows 
shall  be  observed  in  future,  and  that  consequently  the  previous 
Instruction  and  the  subsequent  Declarations  are  hereby  abro- 
gated, with  the  exception  of  what  is  contained  in  the  present 
Instruction. 

I.  The  Ordinary  is  bound,  by  virtue  of  his  pastoral  office,  dili- 
gently to  look  after  the  discipline  and  correction  of  ecclesiastics. 
Hence  he  should  watch  assiduously  over  their  conduct,  and  make 
wise  use  of  the  remedies  established  by  the  canons,  for  the  purpose 
either  of  preventing  or  of  doing  away  with  abuses  which  sometimes 
creep  in  among  the  clergy. 

IT.  These  remedies  are  of  two  kinds;  some  Eire  preventive,  others 
repressive.  The  former  have  for  their  object  the  prevention  of 
evils,  the  removing  of  causes  of  scandal,  and  the  avoiding  of  volun- 
tary proximate  occasions  of  sin.  The  latter  are  established  for  the 
purpose  of  recalling  the  delinquent  to  the  path  of  duty,  and  of 
taking  away  the  effects  of  the  offences  committed  by  him. 

III.  The  application  of  any  of  these  remedies  is  left  to  the  con- 
scientious discretion  of  the  Ordinary,  provided,  however,  the  pre- 

486 


CUM    MAGNOPERE.  487 

scriptioiis  of  the  sacred  canons  be  observed,  according  to  tlie  grav- 
ity of  the  case  and  the  attendant  circumstances. 

IV.  The  following  are  the  chief  preventive  remedies:  Spiritual 
exercises,  admonitions,  precepts. 

V.  However,  before  they  are  imposed  upon  any  one,  tlie  facts 
calling  for  them  must  be  verified  in  a  summary  manner.  The 
Ordinary  should  take  care  to  preserve  a  written  record  of  this 
summary  verification  or  inquiry,  in  order  that  he  may  be  aVjle,  if 
need  be,  to  proceed  to  ulterior  measures,  and  in  the  case  of  lawful 
recourse,  to  ,give  an  accurate  account  of  the  entire  affair  to  the 
higher  ecclesiastical  authority. 

VI.  The  canonical  warnings  may  be  made  either  secretly  (also  by 
letter,  or  by  means  of  a  third  person),  by  way  of  paternal  correc 
tion,  or  they  may  be  given  with  the  formalities  prescribed  by  law, 
provided  always  that  the  fact  of  their  having  been  really  given  ap- 
pears from  some  act. 

VII.  If  the  admonitions  fail  to  produce  any  effect,  the  Ordinary 
will  order  the  curia  to  communicate  to  the  delinciuent  a  precept 
analogous  to  the  warnings.  This  precept  should  state  what  the 
delinquent  must  do  or  avoid,  and  also  explain  what  ecclesiastical 
punishment  will  be  inflicted  upon  him  in  case  he  disobeys  the 
precept. 

VIII.  The  precept  will  be  enjoined  upon  the  delinquent  by  the 
chancellor  of  the  curia,  in  the  presence  of  the  vicar  general,  or  of 
two  ecclesiastics,  or  laics  of  probity,  as  witnesses. 

1°  The  act  of  the  enjoioing  of  the  precept  is  signed  by  the  parties 
present,  and  also  by  the  delinquent,  if  he  wishes. 

2^  The  vicar  general  can  impose  upon  the  witnesses  the  oath  to 
observe  secrecy,  if  this  is  prudently  required,  on  account  of  the 
nature  of  the  case. 

TX.  So  far  as  concerns  repressive  remedies  or  punishments,  Ordi- 
naries will  remember  that  the  extrajudicial  remedy  established  by 
the  council  of  Trent,  sess.  XIV,  cap.  1,  de  Ref.,  for  occult  crimes, 
remains  in  full  force. 

X.  In  a  criminal  action  instituted  either  for  the  violaiiou  of  the 
precept  or  for  common  crimes,  or  for  the  transgression  of  ecclesi- 
astical laws,  the  trial  will  be  conducted  in  a  summary  manner  and 
without  the  nice  formalities  of  solemn  trials,  yet  so  that  the  rules 
of  justice  be  always  observed  in  all  their  substance, 

XI.  The  trial  is  begun  c.r  officio,  and  that  either  on  cccasion  of 
complaints,  or  of  accusations,  or  of  information  brought  to  the 
curia  in  any  way  w  hatever:  and  is  carried  to  its  end  in  such  a  man- 
ner that  the  truth  will,  in  all  sincerity  and  prudence,  be  discov- 


488  lf:gat^  formulary. 

ered  and  that  a  clear  knowledge  will  be  obtained  both  of  the  crime 
itself  and  the  guilt  or  innocence  of  the  accused. 

XII.  Where  curiae  are   already  established  the  comjnlatio  pro 
ee.ssus,  that  is,  the  conduct  of  the  trial,  consisting  in  the  gathering 
together  of  the  evidence  of  both  parties,  may  be  entrusted  to  a 
worthy    and    expert    ecclesiastic,    who    shall    be    attended  by  a 
secretary. 

In  those  dioceses,  however,  in  which  episcopal  courts  cannot  as 
yet  be  established,  the  Instruction  of  1878,  together  with  the  sub- 
sequent answer  to  the  proposed  doubts  concerning  the  same,  shall 
be  meanwhile  observed.  That  is,  each  bishop,  after  having  heard 
theadviceof  his  clergy  assembled  in  diocesan  synod — which  advice, 
however,  he  is  not  bound  to  follow — shall  appoint  five,  or  where 
this  number  cannot  be  had,  at  least  three  of  the  most  worthy 
priests,  and  who  are,  as  far  as  possible,  learned  in  canon  law,  to 
discharge  the  duties  outlined  in  said  Instruction.  Where,  for 
some  grave  reason,  the  synod  cannot  be  held,  five  or  three  ecclesi- 
astics, as  above,  will  be  appointed  by  the  bishop  to  this  office. 
The  members  thus  chosen  will  remain  in  office  till  the  next  dio- 
cesan synod,  when  they  may  be  confirmed  or  others  selected  in 
their  stead.  But  should  the  prescribed  number  of  these  councillors 
be  sometimes  lessened  whether  by  death,  resignation  or  other 
cause,  the  bishop,  having  taken  the  advice  of  the  remaining  men- 
bers  of  the  Commission,  will  appoint  others  in  their  stead.  This 
Commission  of  Consultors,  which  is  bound  by  oath  to  discharge  its 
duties  faithfully,  will  conduct  its  proceedings  under  the  presidency 
of  the  bishop  or  his  vicar  general.  However,  the  summing  up  or 
final  defense  of  the  accused  must  be  made  -in  writing,  in  the  man 
ner  laid  down  in  the  present  Instruction. 

XIII.  A  diocesan  procurator  shall  be  appointed  in  every  episco- 
pal curia,  in  order  that  justice  and  law  may  be  upheld. 

XIV.  For  delivering  intimations  and  notices  where  no  official 
messengers  are  attached  to  the  curia,  the  bishop  shall  employ 
some  reliable  person  who  shall  deliver  them  and  inform  him  of 
such  delivery.  These  notices  may  also  be  sent  by  the  curia,  by 
registered  mail,  (where  this  postal  system  exists),  in  which  case  a 
receipt  of  their  having  been  accepted  or  refused,  should  be 
obtained. 

Intimations  and  notifications  must  always  be  absolutely  in 
writing. 

XV.  The  groundwork  upon  which  the  procurator  fiscalis  bases 
his  charges,  so  far  as  the  oft'ense  or  crime  is  concerned,  can  be  ob- 
tained from  the  information  obtained  in  the  manner  indicated 


CUM   MAGNOPEKE.  489 

above,  under  articles  V  and  XI.  This  expose  or  information  should 
be  corroborated  by  inquiries  from  authentic  sources,  or  by  extra- 
judicial confessions,  or  by  the  depositions  of  witnesses.  This 
groundwork,  so  far  as  the  violation  of  the  precept  is  concerned  is 
obtained  from  the  precept  itself,  and  the  acts  of  its  having  been 
enjoined  in  accordance  with  articles  VII  and  VIII. 

XVI.  However,  in  order  to  assume  the  accused  guilty,  so  as  to 
cite  him  for  trial  and  eventually  convict  him,  legal  proof  is  re- 
quired. This  legal  proof  must  be  made  up  of  such  elements  as 
will  really  and  fully  demonstrate  the  truth,  or  at  least  create  a 
moral  conviction  of  the  guilt  of  the  accused  and  remove  all  reason- 
able doubt  to  the  contrary. 

XVII.  Persons  who  are  subjected  to  examination  are  heard  sep- 
arately, that  is,  apart  from  each  other. 

XVIII.  The  witnesses,  whether  for  the  prosecution  or  for  the 
defence,  in  case  the  secular  law  does  not  forbid  it,  should  take  the 
oath  to  tell  the  truth  and  also  if  the  case  demands  it  to  observe 
secrecy.  Consequently,  before  they  testify  they  shall  swear  that 
they  will  tell  the  truth  and  also  observe  secrecy.  With  greater 
reason,  all  those  who  take  any  part  in  the  proceedings,  by  virtue  of 
their  office,  must  swear  that  they  will  discharge  their  duties  faith- 
fully and  also  observe  secrecy,  as  far  as  the  nature  of  the  case 
requires. 

XIX.  Witnesses  who  are  in  a  distant  part  of  the  diocese,  or  in  a 
different  diocese  altogether,  shall  be  examined  by  the  ecclesiastical 
authority  of  the  place  where  they  are.  For  this  purpose  a  state- 
ment of  the  case  is  transmitted  to  it.  This  authority  shall,  in  com- 
plying with  the  request  to  examine  the  witnesses,  observe  the  rules 
laid  down  in  this  Instruction. 

XX.  Should  witnesses  be  pointed  out  who  ought  to  be  examined 
respecting  facts  or  circumstances  which  have  reference  to  the  sub- 
stantial merits  of  the  cause,  and  who.  nevertheless,  cannot  be  ex- 
amined, either  because  it  is  not  lawful  or  proper  to  cite  them  to 
appear  in  court,  or  because  they  refuse  to  appear,  after  having 
been  asked  to  appear,  it  becomes  necessary  to  mention  this  in  the 
acts,  and  their  absence  is  supplied  by  the  testimony  of  other  wit- 
nesses who  know  of  the  facts  either  from  hearsay  or  from  other 
sources. 

XXI.  When  all  the  evidence  has  been  collected  which  goes  to 
show  the  truth  of  the  facts  in  the  case  and  the  guilt  of  the  accused, 
the  latter  is  called  to  trial  by  a  written  summons  or  intimation. 

XXII.  In  the  citation,  unless  prudence  forbids,  the  accusations 

68 


490  LEGAIv    FORMULARY. 

brought  against  the  accused  are  stated  in  full  so  that  he  may  pre- 
pare for  his  defence. 

XXIII.  But  if,  on  account  of  the  character  of  the  accusations,  or 
for  some  other  cause,  it  is  not  expedient  to  express  the  accusations 
in  the  citation,  it  will  be  sufficient  to  intimate  in  it  that  the  accused 
is  called  to  trial  in  order  to  defend  himself  in  a  matter  which  is 
under  investigation, 

XXIV.  If  he  refuses  to  appear  for  trial  he  is  summoned  a  second 
time.  In  this  second  citation  a  peremptory  term  is  fixed,  within 
which  the  accused  must  appear,  and  he  is  informed  that  if  he  fails 
to  obey  he  will  be  adjudged  contumacious.  Should  he  also  refuse 
to  comply  with  this  second  citation,  without  proving  a  legitimate 
hindrance,  he  shall,  as  a  matter  of  fact,  be  regarded  as  contumacious. 

XXV.  But  if  he  appears  in  court  he  should  be  heard.  And  if  he 
makes  statements  of  any  consequence  they  should,  as  far  as  pos- 
sible, be  accurately  discussed. 

XXVI.  The  next  step  is  the  plea  or  contestation  of  the  offence 
and  of  the  proofs  extant  which  go  to  show  that  the  accused  should 
be  considered  guilty  and  has  rendered  himself  liable  to  canonical 
punishments. 

XXVII.  When  the  accused,  from  what  has  taken  place  thus  far, 
knows  all  that  is  contained  in  the  acts  against  him,  he  can  make 
his  defence  and  therefore  produce  his  witnesses,  etc.  He  can  also, 
if  he  wishes,  make  use  of  the  right  to  hand  in  a  written  defence 
which  must  be  signed  by  himselL 

XXVIII.  He  can,  moreover,  if  he  asks  for  it,  obtain  a  suitable 
delay  to  enable  him  to  present  this  written  defence,  especially 
where  on  account  of  what  is  said  in  article  XXIII  he  has  not  been 
able  to  get  ready  his  reply  to  the  accusations  brought  against  him. 

XXIX.  When  the  trial  is  over  the  auditor  shall  make  out  a 
written  synopsis  of  the  principal  evidence  submitted  on  both  sides 
and  of  the  legal  deductions  flowing  from  it. 

XXX.  On  the  day  on  which  the  final  summing  up  will  take  place 
the  accused  will  have  the  right  to  make  his  final  defence  or  sum- 
ming up  in  writing  through  another  priest  acting  for  him  and  in 
his  name.  But  if  he  does  not  find  a  competent  priest  to  do  this  he 
can  employ  a  Catholic  layman.  Each  of  these,  however,  must  be 
approved  by  the  ordinary. 

XXXI.  Should  the  accused  decline  to  appoint  an  advocate  the 
ordinary  will  ex  officio  designate  one  for  him. 

XXXII.  The  advocate  will,  under  due  precautionary  measures 
examine  the  entire  process  and  its  synopsis  in  the  chancery  of  the 
curia,  in  order  that  he  may  be  able  to  defend  the  accused.    And 


CUM    MAGNOPERR.  491 

he  will  hand  in  the  defence  or  summing  up,  in  writing,  prior  to  the 
day  on  which  the  case  is  to  be  proposed  and  final  sentence  pro- 
nounced. He  is  also  obliged  to  take  the  oath  to  observe  secrecy, 
should  the  judge  believe  that  the  nature  of  the  case  demands  it. 

XXXIII.  The  trial  and  its  resume  are  sent  to  the  procurator 
flscalis  in  order  that  he  may  be  able  to  fulfill  the  duties 
of  his  office.  After  the  procurator  flscalis  has  handed  in 
his  written  summing  up  the  latter  is  communicated  to  the 
advocate  of  the  accused  so  that  he  may,  if  he  chooses, 
reply  to  it  in  writing.  Thereupon  all  the  acts  are  remitted  to  the 
ordinary  who,  after  acquiring  a  full  knowledge  of  the  case,  fixes  a 
day  for  the  pronouncing  of  the  final  sentence. 

XXXIV.  On  the  day  appointed  the  bishop  or  his  vicar  general 
pronounces  the  sentence,  in  the  presence  of  the  diocesan  prosecu- 
tor and  of  the  advocate  of  the  accused,  dictating  its  dispositive 
part  to  the  chancellor,  and  making  express  mention,  in  case  he 
pronounces  condemnatory  sentence,  of  the  ecclesiastical  law  sanc- 
tioning the  punishment,  which  is  applied  to  the  accused. 

XXXV.  The  sentence  shall  then  be  delivered  to  the  accused,  who 
can  appeal  to  the  authority  of  the  higher  instance. 

XXXVI.  In  the  appeal  it  will  be  necessary  to  observe  the  regula- 
tions made  by  Pope  Benedict  XIV,  of  holy  memory,  in  his  consti- 
tution Ad  MiUtccntis,  March  30,  1742,  as  also  those  rules  which  are 
laid  down  by  the  Sacred  Congregation  of  Bishops  and  Regulars,  in 
the  decree  of  Dec.  18,  1835,  and  in  the  circular  of  Aug.  1,  1851. 

XXXVII.  The  appeal  should  be  interposed  within  the  space  of 
ten  days  from  the  time  the  sentence  was  served  on  the  accused. 
When  this  term  has  elapsed  and  no  appeal  has  been  made  the  sen- 
tence can  be  executed. 

XXXVIII.  However,  when  the  appeal  is  interposed,  the  curia 
shall  forthwith   transmit  to   the   ecclesiastical  authority  of  the 
higher  instance  all  the  acts  of  the  cause  in. their  originals,  namely 
the  trial,  its  synopsis,  the  summing  up  and  the  sentence. 

XXXIX.  The  authority  of  the  higher  instance,  having  been  in- 
formed of  the  appeal,  commands  the  appellant  to  appoint,  within 
thirty  days,  an  advocate  for  himself,  who  must  be  approved  by  it. 

XL.  When  the  peremptory  space  of  30  days  has  expired  and  the 
accused  has  not  presented  any  advocate,  he  is  regarded  as  having 
given  up  the  benefit  of  appealing.  Consequently  the  judge  of  the 
higher  instance  shall  declare  the  appeal  extinct. 

XLI.  In  the  appeal  from  the  sentence  of  the  episcopal  curia  to 
the  Metropolitan's  curia  the  archbishop  will,  in  hearing  and  decid- 


492  IvEGAL    FORMULARY. 

ing  the  cause,  use  the  same  mode  of  proceeding  which  is  outlined 
in  this  Instruction. 

XLII.  Where  an  ecclesiastic,  notwithstanding  the  privilege  of 
exemption  from  the  secular  forum,  is  placed  on  trial  by  the  civil 
authorities  for  common  offences,  the  ordinary  will  make  a  sum- 
mary inquiry  into  the  alleged  crime  and  see  whether,  according  to 
the  sacred  canons,  the  accused  has  made  himself  liable  to  infamy, 
irregularity  or  any  other  canonical  punishment. 

1*.  Pending  the  trial,  or  while  the  accused  is  in  prison,  it  will  be 
advisable  for  the  ordinary  to  adopt  merely  provisional  measures. 

2*.  When  the  trial  is  over,  if  the  accused  is  set  at  liberty,  the  epis- 
copal curia  will,  according  to  the  nature  of  the  information  obtained 
as  above,  proceed  in  the  manner  laid  down  in  this  Instruction. 

XLIII.  In  doubtful  cases  and  in  the  various  difficulties  coming 
up  in  practice  ordinaries  should  consult  this  Sacred  Congregation 
in  order  that  they  may  avoid  contentions  and  nullity  of  the  acts. 

XLIV.  Episcopal  courts  cannot  be  so  easily  condemned  to  pay 
costs  or  damages.  For,  whenever  it  appears  from  the  informative 
process  of  the  curia  a  <iiia  that  there  were  sufficient  indications  of 
guilt  to  warrant  the  curia  to  proceed  against  the  accused,  the 
judge  of  appeal  shall  abstain  from  the  condemnations  in  question, 
since  those  indications  of  guilt  are  sufficient  to  exonerate  the 
judge  of  the  lower  instance  from  the  true  and  real  calumny  or 
false  accusation  which  is  required  for  these  condemnations. 

XLV.  The  decrees  of  the  Second  Plenary  Council  of  Baltimore, 
No.  125,  so  far  as  regards  the  character  of  missions  or  congrega- 
tions, and  Nos.  77, 108,  so  far  as  concerns  the  juridical  effects  of  the 
removal  of  missionaries  from  office,  are  in  no  wise  changed  or  ab- 
rogated, excepting  in  so  far  as  they  are  modified  by  the  regulations 
which  have  been  recently  made  respecting  irremovable  parish 
priests  or  rectors. 


DE  PRAESCRIPTIONE  ADMITTENDA  IN  CAUSIS  CRIMINALIBUS  CLERICORUM. 

Illustrissime  et  Rme  Domine  uti  Frater, 

Litterae  Amplitudinis  Tuae  die  16  Junii  1894  datae  ad  obtinen- 
dam  authenticam  solutionem  nonnullorum  dubiorum  circa  prae- 
scriptionem  delictorum  carnis  in  causis  criminalibus  Clericorum, 
remissae  fuerunt  ad  banc  Sacram  Congregationem  Negotiis  et 
Consultationibus  Episcoporum  et  Regularium  praepositam,  ad 
hoc,  ut  ea,  qua  ipsa  pollet,  competentia  in  re  criminali  Clericorum, 
quid  in  proposita  quaestione  sentiendum  decerneret.  Omnibus 
sedulo  perpensis,  Emi  Patres  in  Comitiis  liabitis  4  Martii  1898  haec 


DECREE   ON    PRESCRIPTION.  493 

retinenda  censuerunt:  tralatitii  scilicet  iuris  esse,  in  causis  crim- 
inalibus  ecclesiasticis  locum  habere  praescriptionem,  et  quidem 
nedum  quando  iudex  procedit  ad  iustantiam  privati  accusatoris, 
sed  et  quando  ad  vindictam  publicam  seu  ex  officio  inquirit;  huius 
vero  praescriptionis  eum  proprium  eftectum  esse,  ut  solam  -peri- 
mat  actionem  poenalem,  siquidem  per  accusatum  seu  inquisitum, 
aut  per  eius  ijrocuratorem  expresse  de  praescriptione  iudicio 
oppositum  f  uerit. 

Exinde  facile  est  deprehendere,  integrum  tum  accusandi  tum 
inquirendi  ius  manere  usquedum  expresse  non  opponatur  prae- 
scriptio,  et  omnino  tenere  indicium  si  eadam  opposita  minime 
fuerit. 

Quod  si  in  iudicium  praescriptio  deducta  fuerit  et  legitima 
recognoscatur,  tunc  perimit  quidem  actionem  criminalem,  at  non 
civilem,  quae  forte  ex  eodem  delicto  promanat:  et  hinc,  non  ob- 
stante praescriptione,  reum  manere  obnoxium  omnibus  effectibus 
canonicis  non  criminalibus  ex  patrato  delicto  provenientibus. 
manifesti  iuris  est.  Immo  licet  praescriptione  actio  poenalis  ex- 
tinguatur,  non  tamen  toUitur  exceptio,  quae  perpetuo  manet,  iuxta 
iuris  effatum;  "'Temporalia  ad  agendum,  perpetua  sunt  ad  excip- 
iendum;"  ideoque  delictum  illud,  etsi  praescriptum,  potest  reo 
semper  opponi  per  modum  exceptionis,  eique  obest,  si  ad  ecclesi- 
asticas  provisiones  concurrere  vellet. 

Quod  autem  spectat  ad  tempus  necessarium  ad  dictam  prae- 
scriptionem inducendam,  regula  generalis  est,  actionem  iniuri- 
arum  spatio  unius  anni;  crimen  peculatus  et  delicta  carnis  spatio 
quinque  annorum;  caetera  vero  crimina  spatio  viginti  aunorum  a 
die  commissi  delicti  continuorum  praescribi.  Verumtamen  si 
agatur  de  delictis,  quae  successiva  sunt  et  permanentia,  in  his 
nulla  praescriptio  locum  habet  nisi  a  die  cessantis  delicti:  quem- 
admodum  si  delictum  fuerit  totaliter  occultum,  praescriptionem 
non  a  die  commissi  criminis,  sed  a  die  scientiae  accusatoris  vel  in- 
quisitoris  currere  placet. 

Illud  demum  hand  praetereundum  est,  quod  criminibus  raptus. 
stupri  per  vim  illati,  et  adulterii  cum  incestu  coniuucti,  nonnisi 
lapsu  viginti  annorum  praescribatur;  criminibus  vero  suppositi 
partus,  parricidii,  assassinii,  laesae  maiestatis,  duelli,  falsae  mone- 
tae, apostatatus,  haeresis,  simoniae,  concussionis,  abortus  et  sodo- 
miae,  nullo  unquam  tempore  praescribatur,  sed  perpetuo  horum 
criminum  rei.  dum  vivunt,  accusari  et  inquiri  possunt.  Quibus 
omnibus  SSmo  Domino  Nostro  relatis,  in  audientia  habit  a  ab  in- 
frascripto  Cardinali  Praef ecto  die  21  Martii  an.  1898,  Sanctitas  Sua 
sententiam  Eminentissimorum  Patrum  adprobare  dignata  est. 


494  IvEGAL    FORMULARY. 

Haec  signiflcanda  habui  Amplitudini  Tiiae,  cui  fausta  et  pros- 
pera  omnia  a  Deo  adprecor, 
L.  >b  S.  Seraph.  Card.  Vannutelli,  Praef. 

Romae,  die  22  Martii,  1898.  A.  Trombetta,  fSecret. 


DECREE    "TAMETSi"   IN    AMERICA. 


The  decree  "Tametsi"  has  been  published  in  the  following  places 
in  America:  All  the  regions  which  sometime  were  under  rule  of 
the  Spaniards  or  Portuguese,  even  though  not  yet  inhabited 
(>S.  O.  Jan,  23,  1882);  Mexico,  Curacao,  Trinidad;  Canada,  especially 
lower,  (/S.  O.  Nov.  14,  1888)  Quebec  city  and  diocese  at  least  in  part; 
Province  of  New  Orleans;  Province  of  San  Francisco,  and  Utah 
except  the  part  east  of  Colorado  river;  Province  of  Santa  Pe,  ex- 
cept the  western  part  of  Colorado;  Indianapolis  diocese,  St.  Louis 
city;  Places  called  St.  Genevieve,  St.  Ferdinand,  St.  Charles,  in 
the  Archdiocese  of  St.  Louis;  Places  called  Kaskasia,  Cahokia, 
French  Village,  Prairie  du  Rocher  in  Belleville  diocese;  (The  par- 
ish of  Detroit  city.) 

The  decree  has  not  beeyi  published  in  America  in  the  following 
places:  Province  of  Baltimore  (>S'.  Cong.  Propaga7ida  Dec.  13,  1817.) 
Provinces  of  Philadelphia,  New  York,  Boston,  Oregon,  Milwaukee, 
St.  Paul,  Dubuque,  Cincinnati,  except  the  diocese  of  Indianapolis 
(and  the  parish  of  Detroit);  St  Louis,  except  the  city  of  St.  Louis 
and  places  mentioned  above;  Chicago,  except  places  of  Belleville 
diocese  mentioned  above.     (*S'.  O.  Nov.  25,  1885.) 

It  is  doubtfut  about  the  publication  of  the  decree  in  the  diocese 
and  province  of  Quebec  in  Canada.  Further,  about  the  year  1840, 
the  Bishop  of  Kingston,  whose  diocese  then  contained  all  the 
present  province  of  Toronto  and  half  of  that  of  Ottawa,  published 
the  decree  throughout  his  whole  diocese.  In  1852  the  bishops  of 
Canada  in  council  doubted  about  the  validity  of  the  publication, 
there  being  ^no  real  parishes.  To  their  request  to  confirm  the 
publication  the  S.  Propaganda  gave  an  ambiguous  reply.  But  on 
Nov.  14,  1883,  the  Holy  Office  in  a  similar  case  (St.  Hyacinth)  held 
the  publication  to  be  valid.  •  Hence  it  seems  valid  in  Ontario, 
there  being  no  doubt  about  the  fact  of  publication. 

The  decree  is  no  longer  observed.,  nor  of  obligation,  in  the  parish 
of  Detroit,  because  it  is  not  mentioned  as  of  obligation  in  the  de- 
cree of  the  Holy  Office  of  Nov.  25, 1885.  It  is  reported  the  decree 
is  not  observed  in  Canada  in  the  Provinces  of  Halifax,  Ottawa  and 
Toronto,  although  in  Rome  {Cf.  Zitelli  Juris  Ec  p.  431)  it  is  held  as 
validly  published  in  those  places. 


GENERAL  INDEX. 


A 

Administrator  of  Diocese,  p.  2,  n.  3;  p.  33,  n.  30. 

Administration  of  property,  p.  68,  n.  74-75;— parish,  p.  00,  ii.  00: 
p.  112. 

Auditors  of  Accounts,  p.  78,  n.  84. 

Appointment  of  vicar  general,  p.  11,  n.  16:— of  canon,  p.  46,  n.  51- 
52; — of  vicar  capitular,  p.  29,  n.  33;— of  consultor,  p.  49,  n.  53; 
—  of  deans,  p.  51,  n.  54;  — of  chancellor,  p.  56,  n.  59;  — of  secre- 
tary, p.  65,  n.  70;  — of  econome,  p.  71,  n.  76;  —of  fiscal  procura- 
tor, p.  75,  n.  81; — of  auditors  of  accounts,  p.  79,  n.  84;— of  synodal 
examiners,  p.  107;  of  rectors,  p.  109-111;  —of  judge,  p.  306:  — 
defender  of  religious  prof.,  p.  422;  — of  treasurer  of  fines,  p.  462. 

Assistants  to  pastors,  p.  94,  n.  94-95;  — appointment  of,  p.  112. 

Alienation  of  parish  property,  p.  116,  n.  116 ;  —p.  287-295. 

Absolution,  forms  for,  p.  178-180;  -  certificate  of,  p.  181:  —  from 
contumacy,  p.  328-330:  — ad  cautelam,  p.  449. 

Alms,  begging,  p.  283-284. 

Acts  of  Process,  — summary,  p.  311;  — judicial,  p.  315:  (see  Forms 
in  Trials.) 

Accused,  citation  of,  p.  345-348;  — contumacy  of,  p.  351-355:— hear- 
ing of,  p.  363;  — defense  of,  374. 

Arbiters,  appointment  of,  p.  356;  — decision  of,  p.  361. 

Appeal,  forms  for,  p.  306-400:  — extinction  of,  p.  400:  -from  cen- 
sures, p.  448-458. 

B 

Bishops,  appointment  of,  p.  1,  n.  1;  —of  province,  p.  3,  n.  6:  — 
coadjutor,  p.  10,  n.  11:  advise  with  consultors,  p.  46,  n.  50:  — 
chancellor,  see  chancellor:  secretary,  p.  65,  n.  70:  — econome, 
p.  65,  n.  71:  — responsible  for  criminal  trials,  p.  290. 

Benefice,  erection  of,  p.  113.  n.  114:  — p.  156.  n.  155-156:  —title  of. 
for  orders,  p.  180. 

Baptism,  certificate  of,  p.  196,  n.  199. 

495 


496  GENERAL    INDEX. 

Books,  prohibition,  p.  243,  254;  — censure  of,  p.  255-260. 

C 

CoNSULTORS,  and  ir.  rectors,  nominate  bishop,  p.  2,  n.  2  seq.  — p. 
43,  n.  47;  — precedence  of,  p.  136,  n,  134;  — advice  before  synod, 
p.  268;  — must  advise  in  each  alienation,  p.  288;  — term  expires, 
p.  297. 

Candidates  for  Bishop,  qualities  of,  p.  3,  n.  6  et  seq.  — ^^excepting 
to,  p.  423. 

Chapter,  cathedral,  p.  29,  n.  33;  p.  37,  n.  39-46. 

Cathedral,  transfer  of,  p.  296. 

Chancellor  of  bishop,  p.  53,  n.  57;  —has  no  precedence,  p.  54,  n. 
58;  p.  57,  n.  60;  p.  61,  n.  65;  p.  141,  n.  136. 

Contumacy,  notorious,  must  be  shown,  p.  304;  — of  witness,  p.  ^324- 
330;  — of  accused,  p.  351-355. 

CoNCURSUs,  p.  100,  n.  100-104;  — announcement  of,  p.  108,  n.  107. 

Censure  of  Books,  p.  255-260. 

Censures,  forms  for,  p.  431-446;  — appeal  from,  p.  424:  — latae,  p.  477. 

Communion,  certificate  of,  p.  147,  n.  144. 

Corpus  Delicti,  p.  319-321. 

CoMPLicis,  absolutio,  p.  165,  n.  166-167. 

Convents,  establishment  of,  p.  275-281;  — visiting  in,  p.  163;  — 
changes  in,  p.  281. 

Certificate  of  absolution,  p.  181;  — o*f  baptism,  p.  196,  n.  199;  — 
of  ordination,  p.  201. 

Citation,  necessary  also  before  declaratory  sentence,  p.  303;  — of 
witness,  p.  323;  — accused,  p.  345-350;  — to  hear  sentence,  p.  386. 

Challenge  of  judge,  p.  356;  — of  witness,  p.  381. 

"Cum  Magnopere,"  given  in  full,  p.  486. 

Correcting  books,  p.  260. 

D 

Degrees,  p.  5.  n.  8;  — p.  8,  n.  9. 

Deans,  rural,  p.  51,  n.  54;  — precedence  of,  p.  54,  n.  58;  p.  138,  n.  135. 

Doctors,  p.  5,  n.  8;  p.  8,  n.  9. 

Diocese,  incardination  into,  p.  472. 

Dispensations,  not  given  by  chancellor,  p.  55,  n.  58;  — p.  21,  n.  26; 
— application  for  mixed  marriage,  p.  220,  n.  227:  — forms  for, 
p.  217,  n.  231-251;  -special  faculties  for,  p.  234-241. 

DiMissoRiAL  letters,  p.  202-203. 


GENERAL^    INDEX.  497 

Detroit  Diocese,  parishes  in,  p.  87,  n.  89  —  tenure  of  property, 
p.  70,  n.  75;  —  transfer  case,  p.  465. 

Decree,  for  erection  of  seminary,  p.  271; —  for  seminary  tax,  p. 
273;  —  for  alienating  property,  p.  293;  —  large  property,  p.  294;  — 
of  suspension  ex  inl'ormat.ci  c'0)i.scirntia,  p.  442:  —  of  excommuni- 
cation, p.  437-440;  —  of  suspension,  p.  442;  —  of  interdict,  p.  446; 
—  regarding  title  of  mission,  p.  470. 

Dismissal,  from  office,  p.  468-473. 

Deposition,  p.  474. 


Econome  of  bishop,  p.  65,  n.  71. 

Examiners,  synodal,  p.  101,  n.  102;  —  appointment  of ,  p.  107,  n.  1*)7 

ExAMiNiTiON,  certificate  of,  p.  199,  n.  204;  —  of  books,  p.  255. 

Edict,  for  diocesan  visitation,  p.  261,  n.  277;  —  appointing  visitor, 
p.  265;  —  for  calling  synod,  p.  268. 

Excommunication,  form  for,  p.  266;  —  absolution  from,  p.  180;  p. 
330;  —  declaration  of,  p.  437-439;  —  latae  sententiae,  p.  477. 

Excardination  or  Exeat,  form  for,  p.  474. 

Exception  against  candidates,  p.  424. 

F 

Fiscal  Procurator,  p.  73,  n.  77-81:  -has  no  precedence,  p.  141, 
n.  136:  —  in  metropolitan  curia,  p.  74,  n.  79;  p.  402. 

Pines,  p.  460;  —  treasurer  of,  p.  462. 

Faculties,  for  confession,  p.  162,  n.  161-163;  —  special,  p.  164-168; 
p.  182,  n.  184:  —  request  for,  p.  166:  p.  185-176;  —  form  for  grant- 
ing, p.  172;  —  abbreviations  used  in,  p.  181;  —  clauses  in,  p.  177- 
179:  —  special  and  extraordinary  faculties,  p.  234-242;  —  extra- 
ordinary now  pass  to  successors,  p.  241-242;  p.  34,  n.  36;  —  alien- 
ating property  but  only  with  advice  of  cousultors,  p.  288;  — 
withdrawing,  p.  433;  p.  445. 

Forms  for  appointing,  vicar  general,  p.  22.  n.  27,  28,  30:  —  vicar 
capitular,  p.  31,  n.  35:  —  administrator  of  diocese,  p.  35,  n.  38:  — 
canon,  p.  46,  n.  51-42:  —  consultor,  p.  49,  n.  53;  —  rural  dean,  p. 
52,  n.  56:  —  chancellor  of  bishop,  p.  55,  n.59:  — of  econome,  p.  71, 
n.  76:  —  fiscal  procurator,  p.  75,  n.  81:  defender  of  marriage 
bond,  p.  77,  n.  82:  —  court  messenger,  p.  77,  n.  83:  -  auditors  of 
accounts,  p.  79,  n.  84;  —  irremovable  rector,  p.  109,  p.  126:  -  mov- 
able rector,  p.  Ill:  -  assistant  to  pastor,  p.  112:  —  administrator 
of  parish,  p.  112:  —  confessors  for  nuns,  p.  174:  —  auditor  or 
judge,  p.  306,  n.  337:  —  defender  of  religious  profession,  p.  422:  — 
treasurer  of  fines,  p.  462. 

FoR3i  for  taking  ofiice,  p.  24,  n.  29;  —  oath  of  office,  p.  57,  n.  60:  — 
for  establishing  parish,  p.  119,  n.  121-124:  -^  for  granting  pen- 
sion, p.  131 :  —  for  applying  for  irremovability,  p.  125:       for  re- 

64 


498  GEiNERAIv    INDEX. 

signing  parish,  p.  129:  —  for  celebret,  p.  153,  n.  152;  —  for  grant- 
ing bination,  p.  154;  —  for  foundation  of  masses,  p.  155;  —  for 
erecting  benefice,  p.  157;  -  forgiving  faculties  for  confession,  p. 
172;  —  for  absolution  from  suspension  or  excommunication,  p. 
179;  —  for  executing  dispensations,  p,  178-180;  —  announcing 
ordination,  p.  194,  p.  200;  —  for  dimissorial  letters,  p.  199,  n.  205; 

—  testimonial  of  freedom  to  marry,  p.  216:  —  for  permission,  for- 
bidden times,  p.  217;  —  for  interpellation,  Pauline,  p.  219;  — 
agreement  of  non-Catholic  to  marriage,  p.  221:  —  for  asking 
dispensations,  p.  221-223;  —  executing  dispensations,  p.  233;  — 
granting  dispensations,  p.  229,  n.  250-252;  —  special  faculties,  p. 
234-241;  —  appointing  visitor  of  diocese,  p.  265;  —  for  excom- 
munication, p.  266:  —  for  interdict,  p.  266:  —  for  calling  synod, 
p.  268:  -  for  erecting  seminary,  p.  271:  -  for  tax  for  seminary, 
p.  273:  ~  establishing  convent  or  monastery,  p.  280;  —  for  alien- 
ation, p.  294-295;  —  exeat,  p.  474.  • 

Forms  in  trials:  form  for  monition,  p.  300;  —  for  pi-ecept,  p.  300; 
— for  ordering  retreat,  p.  429;  —  recording  acts  of  trials,  p,  311; 
— opening  process,  p.  311-314-317;  —  criminal  libellus,  p.  315;  — 
Corpus  delicti,  p.  320;  —  introducing  documents,  p.  321:  —  citing 
witness,  p.  323-324:  ~  serving  citation,  p.  325;  —  examining  wit- 
nesses, p.  336-336;  dismissing  charges,  p.  346;  —  citation  of  ac- 
cused, p.  348;  —  for  declaring  contumacy  of  accused,  p.  352;  — 
challenging  judge,  p.  357:  — actsof  arbiters,  p.  369;  —  decision  of 
arbiters,  p.  361:  —  for  examiniog  accused,  p.  365;  —  specifications 
in  bill  of  charges,  p.  366;  —  legalizing  testimony,  p.  368;  —  copy 
of  acts,  p.  371;  —  asking  time,  p.  373;  —  for  cross  exam.,  p.  374;  — 
defense,  p.  378;  —  challenging  witness,  p.  381:  —  for  appeal  and 
challenge  in  interloc.  sentence,  p.  380-382;  —  citation  to  hear 
sentence,  p.  386;  —  giving  defin.  sentence,  p.  387-390;  —  in  notor- 
iety, p.  303:  —  for  appealing,  p.  396-400;  —  for  appeal  acts,  p.  401; 

—  appeal  sentence,  p.  406; —  extinction  of  appeal,  p.  409;  —  bill 
in  civil  case,  p.  416;  —  answer  to  same,  p.  418;  —  senteDce  in  civil 
case,  p.  419;  —  summary  civil  process,  p.  420-426;  —  excepting  to 
candidates,  p.  423;  —  imposing  retreat,  p.  429;  —  warning  before 
censure,  p.  436-439;  —  declaring  excommunication,  p,  437-439;  — 
for  suspension,  442-444;  —  for  interdict,  p.  446;  —  appeal  from 
censure,  p.  454;  —  remitting  appellant  for  absolution,  p,  455;  — 
citing  vicar  gen.,'  p.  456;  ^  censuring  vicar  gen.,  p.  457. 


Guardian,  for  relatives,  p.  274. 


I 


Irremovable  Rectors,  p.  89,  n.  90:  —  concursus,  p.  100,  n.  101;  — 
nominate  bishops,  p.  1,  n.  1:  —  appointment  of,  p.  100,  p.  126;  — 
trial  of,  p.  105,  n.  106,  p.  465;  —  transfer  of,  469;  —  precedence  of, 
p.  136.  n.  134;  p.  492  in  n.  45  of  "Cum  magnopere." 

Irremovable  Rectorships,  changes  in,  p.  117,  n.  118, 126;  —  bishop 
must  make,  p.  117,  n.  119, 124, 125. 


GENERAL    INDEX.  499 

Incardixation  into  diocese,  p.  472. 

Infirm  Priests,  support  of,  p.  118,  n.  120:  p.  131,  ii,  120. 

Impediments  to  matrimony,  p.  210,  u,  221,  to  229;      application  lor 
dispensation,  p.  2:30.  n.  236-218. 

Imprisonment,  p.  463. 

Interpellation,  Pauline  privilege,  p.  219,  n.  235. 

Index  Rules,  p.  243-2()0. 

Interdict,  form  for,  p.  266,  p.  446;  — latae  sententiae,  p.  485. 

Instruction  regarding  alienation,  p.  289. 

Investigation,  summary,  p.  311. 

Ill-fame,  p.  335;  — decree  of,  p.  338. 


Judge,  appointment  of,  p.  .306:  —challenge  of,  p.  356. 
Jurisdiction  of  metropolitan  over  suffragans,  p.  458. 


Licentiates,  p.  8,  n.  9,  p.  15,  n.  18. 

Letters,  dimissorial  for  regulars,  p.  199:  — for  diocesans,  p.  202: 
— testimonial,  p.  204:  — certifying  health,  p.  2(KJ:  of  testi- 
mony of  parish  priest,  p.  195;  testifying  freedom  for  mar- 
riage, p.  216,  n.  230;  commissorial  and  remissorial  for  exam, 
witness,  p.  331. 

M 

Mass,  p.  147,  n.  145;  —  for  whom  said,  p.  118,  u.  146;  —  stipend 
for,  p.  149,  n.  147;  —  binating,  p.  150,  n.  149,  1.33;  —  celebret,  p. 
153,  u.  152;  —  foundations  of,  p.  155,  n.  154;  —  bequests  for,  p. 
158,  n.  157. 

Mission,  title  of,  p.  118,  n.  120;  p.  190.  n.  190-194:  —  decree,  p.  470. 

Matrimony,  banns  of,  p.  208,  n.  217:  —  celebrated  in  church,  p. 
209,  n.  219.  n.  222:  --  impediments  to.  p.  210,  n.  221:  freedom 
for,  p.  216,  u.  230:  —  celebrated  in  house,  p.  217,  n.  232:  dispen- 
sations for,  p.  217-233. 

Monastery,  erection  of,  p.  274-281;  —  imprisonment  in,  p.  463. 

Monition,  form  for,   p.  3lX);   —  witness    in    contumacy,   p.   :^26 
—  accused  in  contumacy,  p.  1354. 

Mortgaging  church  property,  p.  116;  p.  228. 

N 
Nomination  of  bishops,  p.  1.  n.  1:  —  oath  for,  p.  2;  p.  13. 


500  GENERAL    INDEX. 

Notary,  appointment  of,  p.  56,  n.  59;  p.  64,  n,  69;  —  only  bishop  or 
pope  can  create,  p.  58,  n.  62, 

Notorious,  oases,  p.  303;  —  in  censure,  p.  449. 


Oath  of  office,  p.  57,  n.  60;  —  of  notary,  p.  63,  n.  68;  —  of  canons, 
p.  42;  —  of  defender  of  marriage  bond,  p.  77,  n.  82;  — synodal 
exam.,  p.  102;  —  for  mission  title,  p.  198,  n,  202;  -  explanation 
of,  p.  465;  —  of  secrecy  not  required,  p.  13. 

Order  of  Precedence,  p.  133,  n.  130-136. 

Oils,  holy,  p.  144,  n.  140. 

Orders  Holy,  p.  187;  —  time  for,  p.  193. 

Ordination,  announcement  of,  p.  194-195. 


Possession,  taking  of,  of  office,  p,  25,  n.  29. 

Patrimony,  title  of,  p.  189,  p.  197,  n.  201. 

Precedence,  rural  deans  have  none,  p.  52,  n.  55;  —  bishop's  chan- 
cellor has  no,  p.  54,  n.  58;  p.  57,  n.  60;  p.  61,  n.  65;  —  of  irremov- 
able rectors,  p.  137,  n.  134;  —  of  consultors,  p.  137. 

Property,  tenure  of,  p.  66,  n.  72;  p.  285-286. 

Province,  changes  of,  p.  198,  n.  203;  p.  472. 

Parishes,  p.  81,  n.  87;  -  in  U.  S.,  p.  82,  n.  88-93;  p.  223;  —  in  Detroit 
diocese,  p.  87;  —  title  of,  p.  90,  n.  92;  —  dismemberment  of,  p.  113, 
n.  115;  —  establishing,  p.  119;  —  priest,  p.  80,  n.  86;  p.  96,  n.  97; 
p.  492. 

Pension  of  rectors,  p.  118,  n.  120;  p.  131,  n.  129. 

Prelates,  Roman,  take  precedence,  p.  136,  n.  133. 

Process  for  alienation,  p.  292,  n.  321;  —  judicial,  p.  315,  foil. — 
summary,  p.  421;  —  ex  notorio,  p.  304-305;  — civil  cases,  p.  410-420. 

Preventive  Remedies,  p.  299. 

Prescription  in  criminal  cases,  p.  310,  p.  424,  p.  493. 

Precept  Canonical,  p.  300. 

Punishment,  repressive,  p.  302,  n.  334;  —  rules  for,  p.  427;  —  pre- 
ventive, p.  429;  — retreat,  p.  429:  —  suspension,  p.  443;  —  fines, 
&c,  p.  460-474;  —  transfer,  p.  464;  — -  dismissal   470. 

R 

Rectors,  irremovable,  p.  89,  n.  90;  —  trial  of,  p.  105,  n.  106;  —  ap- 
pointment of,  p.  109,  n.  109;  —  removal  of,  p.  469;  —  movable,  p. 
90,  n.  91-92;  —  appointment  of,  p.  110;  —  transfer  of,  p.  Ill; 
— removal  of,  p.  470;  —  emeritus,  p.  118,  n.  120,  p.  131. 


GENERAL    INDEX.  501 

Regular  Clergy  yield  precedence  to  diocesan,  p.  142:  faculties 
of,  p.  161:  -  approval  of,  p.  173;  —  ordination  of,  p.  188,  n.  18G, 
p.  199,  n.  204. 

Resignation  of  parish,  p.  128,  n.  127. 

Reservation  of  cases,  p.  164,  p.  175. 

Retreat,  imposing,  p.  429. 

Removal  from  office,  p.  468. 


Secretary  of  bishop,  p.  65,  n.  70. 

Support  of  priests,  p.  118,  n.  120;  p.  1.31,  n.  129;  p.  99;  —  under  dis- 
missal, p.  471. 

Sacrament  of  baptism,  p.  143,  n.  1.37;  —  of  confirmation,  p.  143, 
n.  138;  —  of  Holy  Eucharist,  p.  145,  n.  141;  —  of  penance,  p.  160; 
— of  Holy  Orders,  p.  187;  —  of  matrimony,  p.  207. 

Suspension  ex  infonnata  conscientia,  p.  302;  —  form  for,  p.  442-444; 

—  latae  sententiae,  p.  482. 

Sentence,  contumacious  witness,  p.  327:  appeal  interloc.  p.  382; 
— contumacious  accused,  p.  353;  —  definitive,  p.  386-380;  —  in 
notoriety,  p.  394:    -  on  appeal,  p.  407;  —  in  civil  case.  p.  419. 

—  p.  425. 

Sollicitation,  p.  167,  n.  168:  —  process  concerning,   p.   168-171: 

—  of  alms,  p.  282. 

Synod,  diocesan,  p.  267. 

Seminary,  regents,  p.  269;  —  tax.  p.  273. 

SUBDITUS  EPISCOPI,  p.  241. 


Taking  Office,  p.  25,  n.  29:  —  canonry,  p.  42.  n.  46;  —  chauoellor, 
p.  57. 

Titles  of  address,  "Very  Reverend,"  p.  52,  n.  55;  p.  57,  n.  60:  p.  141. 

Title  of  parishes,  p.  91,  n.  92;  —  of  property,  p.  69,  n.  75;  p.  285. 

Title  of  ordination,  p.  118,  n.  120;  p.  189,  n.  188-194:  -  mission, 
p.  466;  —  deprivation  of,  p.  471. 

Trial  of  movable  rectors,  p.  92,  n.  02:  —  necessity  of,  p.  305:  -  of 
irremovable  rectors,  p.  105,  n.  106;  p.  465;  —  forms  for,  see  under 
Forms. 

Tax,  for  seminary,  p.  273. 

Testimony  required  for  punishment,  p.  309:  —  taking,  p.  1330;  — 
legalizing,  p.  368-371. 

Treasurer  of  fines,  p.  462. 


502  GENERAL    INDEX. 

Transfer,  penal,  p.  464; —  to  other  diooese,  p.  467. 
"Tametsi"  Decree,  p.  207,  p.  233,  p.  494. 
Term  of  Consultors,  p.  297. 

U 

University,  pontifical,  p,  6,  n.  9;  —  degrees  of,  p.  9,  n.  9. 

V 

Vicar  General,  appoint.,  p.  14,  n.  16;  —  support,  p.  19,  n.  23;  — 
power,  p.  19,  n.  24;  —  may  be  consultor,  p.  45, n.  49;  p.  50,  note;  — 
is  ordinary  judge,  p.  298;  —  cited  by  archbishop,  p.  456;  —  cen- 
sured by  archbishop,  p.  457. 

Vicar  Apostolic,  p.  17,  n.  20;  p.  26,  n.  31-32. 

Vicar  in  parish,  p.  91,  n.  92. 

W 

Warning,  paternal,  p.  300;  —  necessary  before  censure  even  in 
notorious  cases,  p.  303;  —  in  contumacy,  p.  326,  354. 

Witness,  citation  of,  p.  323;  —  contumacy  of,  p.  326;  —  irreverent, 
p.  329;  —  examining  distant,  p.  331-334;  —  exam.,  p.  335-344; 
—  challenging,  p.  .381;  —  cross  exam.,  p.  375;  —  confrontation  of, 
p.  369. 

Withdrawal  of  faculties,  p.  4.33,  n.  485;  p.  445. 

THE   end. 


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